text:
    STATE of Louisiana v. Charles BEAN.
    No. 57718.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Adam G. Nunez, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Prank T. Salter, Jr., Dist. Atty., A. J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant was charged with the second degree murder of Nathaniel Cornely, Jr., a violation of LSA-R.S. 14:30.1(1). After trial by jury, he was convicted and sentenced to life imprisonment. On appeal, defendant relies upon ten assignments of error for reversal of his conviction and sentence. Finding merit in defendant’s Assignment of Error No. 10, we find it unnecessary to discuss the remaining assignments of error.

In Assignment of Error No. 10, defendant alleges that the court committed reversible error in permitting certain hearsay testimony into evidence, over defense objection, reciting that defendant had stabbed the victim.

The challenged testimony of State’s witness, Howard James Leger, is as follows:

“Q. Okay; and when you went around the building, you saw Thumb? [Thumb is the nickname of the victim.]
“A. Yes.
“Q. And what was Thumb’s condition then?
“A. He was ... he had a big cut around ... in his stomach.
“Q. Okay; and that’s when you said somebody had told you something. What did they tell you then, at that time?
“MR. NUNEZ: Your Honor, I’m going to again object to hearsay.
“MR. FAZZIO: It’s part' of the res gestae.
“THE COURT: Objection is overruled.
“MR. NUNEZ: I reserve, Your Hon- or.
“Q. Now, what did the man tell you when he was holding Thumb, and Thumb was cut in his stomach?
“A. He told me Thumb had been stabbed, and it was real bad.
“Q. Did he say who stabbed him?
“A. Said Charles.
“Q. Charles who?
“A. Bean.”

Hearsay is an out-of-court statement offered at the trial to prove the truth of the matter contained in the statement. State v. Gonzales, 258 La. 103, 245 So.2d 372 (1971); State v. Thomas, 159 La. 1076, 106 So. 570 (1925); 29 Am.Jur.2d, Evidence, § 497, p. 555. The contested statement could have no other purpose than to prove that the defendant was in fact the assailant. Hence, it is hearsay.

The State contends, however, that the statement is admissible in evidence as part of the res gestae. Res gestae is a well-recognized exception to the hearsay rule.

The res gestae exception is statutorily defined as follows:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.” [LSA-R.S. 15:447]
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” [LSA-R.S. 15:448]

The excited utterance exception is broadly applied in Louisiana and includes testimony of utterances before, during, and immediately after the crime. State v. Batiste, La., 318 So.2d 27 (1975); State v. Mays, La., 315 So.2d 766 (1975).

The rationale of the exception is the special reliability of utterances made under the pressure and excitement of a crime or other extraordinary occurrence. Basic to the exception, therefore, is the requirement that the declarant must have personally observed the event about which he makes a factual utterance. Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 240 A.2d 71 (1968); Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967); Pugh, Louisiana Evidence Law, p. 506 (1974); Comment, Excited Utterances and Present Sense Impressions as Exceptions to the Hearsay Rule in Louisiana, 29 La.L.Rev. 661, 673 (1969); 6 J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, § 1751, p. 155 (3rd ed. 1940); McCormick, Evidence, § 297 p. 705 (2d ed. 1972); Anno.-Declarations-Condition of Admissibility, 127 A.L.R. 1030 (1940).

The fundamental principle is correctly stated in 29 Am.Jur.2d, Evidence, § 724, p. 795, as follows:

“In cases or jurisdictions in which statements by bystanders may properly be admitted as part of the res gestae, the admissibility of a particular declaration may be affected by evidence or lack of evidence that the bystander actually observed the principal act to which the statement relates. In this connection, the res gestae exception to the hearsay rule cannot properly dispense with the requirement that in some way, at least, and with some degree of persuasive force, it must appear that the declarant was in reality a witness to the thing which he declared.”

We have found no decision in Louisiana which has squarely applied the rule. Our examination of numerous decisions of this Court dealing with the res gestae exception discloses that invariably the declarant observed the incident to which his utterance pertained. The presence of the declarant was shown either by the statement, itself, or by the foundation laid for the introduction of the statement.

In the present case, the record is insufficient to support a reasonable inference that the declarant actually witnessed the crime. Whether or not his identification of the assailant was based on personal observation is not disclosed in the context of the utterance or in the foundation for its admission. Hence, we hold that the utterance identifying the defendant as the assailant was inadmissible at the trial.

The evidence against the defendant in this case was circumstantial. .Undoubtedly, the hearsay statement naming the defendant as the assailant was quite damaging. Hence, in the light of the entire record, we conclude that it was reversible error. See LSA-C.Cr.P. Art. 921.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded for a new trial according to law and consistent with the views herein expressed.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Clarence RANDOLPH.
    No. 57731.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Philip E. O’Neill, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Clarence Randolph, was charged by bill of information with the crime of simple burglary in violation of R.S. 14:62. After a jury trial the defendant was found guilty and subsequently sentenced to six years imprisonment. On appeal he relies on one assignment of error relating to the trial judge’s ruling denying his motion to suppress the evidence.

On September 13, 1973 Officer Leroy Smith of the New Orleans Police Department received a call to the effect that something suspicious was going on at a residence on Haynes Boulevard. He arrived at the scene, talked to the person who had phoned in about the suspicious activity, and began to investigate. While in the backyard of the residence, he saw two men emerge from the house carrying off certain items. He managed to arrest one man at the scene, while the other, later identified as the defendant, made off into an alley, after throwing a camera and a screwdriver to the ground. Officer Smith then broadcast over the police radio a description of the man that escaped, stating he was a tall black man wearing a brightly colored striped shirt, either red or orange.

Officers Richard Marino and Marcal David of the New Orleans Police Department picked up Officer Smith’s broadcast on their police radio and started driving around near the scene of the crime looking for the suspect. At the intersection of Haynes Boulevard and Downman Road, they came upon a levee board police car in which they saw riding as a passenger a tall black man wearing a striped orange shirt. Officers Marino and David stopped the levee board car and questioned the occupants.

The levee board policeman had not heard Officer Smith’s broadcast concerning the burglary. Rather, he had had a call concerning a suspicious person hanging around near the Lakefront Airport, and had stopped the defendant for questioning. Finding no reason to hold him, the levee board policeman was in the process of giving defendant a ride to a bus stop when the New Orleans policemen intervened.

The officers noticed the defendant was wet, and ascertained from the levee board policeman that the distance from the scene of the burglary to the intersection was only about one block, by way of a canal. The officers arrested the defendant for burglary, and in the course of a search of his person, found two ladies’ scarves, a flash cube and some masking tape, later identified (except for the tape) as items belonging to the owner of the burglarized residence.

The defendant contends that the police had no probable cause to arrest him, and, therefore, the search of his person was invalid. We cannot agree.

C.Cr.P. 213(3) provides:

“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; or . .

Probable cause exists when the facts and circumstances known to the arresting officer, and of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in believing that the person to be arrested has committed a crime. State v. Gilmore, 323 So.2d 459 (La.1975). While mere suspicion is not sufficient to justify an arrest, the officer need not have sufficient proof to convict. State v. St. Amand, 274 So.2d 179 (La.1973).

In the instant case the officers had probable cause to arrest the defendant. They had received a report of a burglary in their vicinity and a description of the suspect as a tall black man wearing a striped orange shirt. This information came from a fellow officer who had personally observed the defendant as he ran out of the house. They saw such a suspect in a levee board car in the vicinity of the crime. Good police work dictated that the officers stop the levee board car to further investigate. Upon being informed by the levee board policeman that he had picked up the suspect just a few minutes earlier about one block, by way of a canal, from the residence, and upon noticing that the suspect was wet, the officers properly arrested him for the burglary. The search of his person was a search incidental to a lawful arrest and therefore the seized items were admissible. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

Accordingly, finding no merit in the assignment of error and finding no errors discoverable by a mere inspection of the pleadings and proceedings, the conviction and sentence are affirmed.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Jaca CALVIN, Jr.
    No. 57738.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Edwin Dunahoe, Law Offices of Gerard F. Thomas, Jr., Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

The grand jury of Natchitoches Parish returned a true bill charging that Jaca Calvin, Jr., negligently killed Susan M. Gordon. La.R.S. 14:32. He pled not guilty, waived trial by jury, and in a bench trial on October 30, 1975, he was found guilty as charged. Calvin was sentenced to serve three years in the parish jail, the last two years being suspended, Calvin being placed on supervised probation during that time.

One assignment of error is urged on this appeal. The defense asserts that it was error for the trial judge to find that defendant was criminally negligent as there was no evidence at the trial to support such a finding.

A study of the record, however, fails to disclose that the issue was properly presented to the trial judge by a defense motion for acquittal, either at the close of the State’s evidence or of all the evidence, as required by Article 778 of the Code of Criminal Procedure. Nevertheless, the entire transcript of evidence has been reviewed, and the Court is satisfied that there was some evidence to support a finding that every essential element of the crime charged was established.

On November 16, 1974 Calvin was at Ernie’s Cafe in the Village of Natchez situated on Louisiana Highway No. 1 about six miles south of the town of Natchitoches. After spending about two hours there “messing around” and playing pool with friends, he entered a dark green 1966 Mercury sedan and drove north on Louisiana Highway No. 1. It was then late afternoon, between 5:30 and 6 o’clock. A misty rain was falling and it was getting dark.

As he proceeded northward he was observed by John H. Thompson, a former sheriff of Atlanta, Texas, who was following, and who was accompanied by his secretary. They testified that they followed Calvin for “three or four, possibly five miles.” Calvin’s car “was going all over the road.” “In other words, it was darting from one side of the road to the other.” At other times “he would gradually go over” from one side of the road to the other. On “some occasions it [Calvin’s car] would go almost off on the other side of the road” into the oncoming lane.

Calvin’s driving so alarmed Thompson and his traveling companion that they attempted to get in touch with law enforcement officials by telephone from Thompson’s car. However, they could not reach the operator. Thompson, realizing the danger, declared that he was determined to stop Calvin’s car somehow. He tried blinking his lights, blowing his horn and even bumped Calvin’s car several times in an effort to get him to stop, all to no avail.

Seeing that he was unable to get Calvin to stop, Thompson dropped back, fearing that he would be involved in what he considered to be an inevitable collision between Calvin and an oncoming vehicle. Shortly thereafter he saw Calvin collide head-on with a Plymouth automobile driven by Susan Gordon. At the time, Calvin had swerved into the opposite southbound lane in the path of the oncoming Plymouth. As a result of the collision Susan Gordon was severely injured and died four days later. Her companion Evelyn Breaux was severely injured, but survived. Calvin was also badly mutilated.

Additional evidence, both testimonial and physical, corroborates the fact that Calvin had driven into the southbound lane and collided head-on with the Plymouth driven by Susan Gordon.

The officer called to the scene had a cold, and because of this and Calvin’s severe injuries, he was unable to detect the odor of intoxicants on Calvin. When he arrived at the hospital with Calvin he promptly requested that a blood sample be drawn from Calvin and tested for alcoholic content. After waiting more than four hours, the test not having been performed, he abandoned the hope of a valid test for intoxication.

Calvin took the stand in his own behalf and was unable to satisfactorily explain the erratic driving or his refusal to stop despite Thompson’s repeated and emphatic efforts to compel him to do so. Rather, he testified that when the collision occurred he was looking down for a cigar that had fallen to the car floor. He didn’t see the Plymouth approaching, he was not wearing his glasses and the windshield of the Mercury he was driving was cracked.

Without belaboring this opinion with the additional evidence, the facts narrated are some evidence upon which the trial judge could conclude that Calvin was guilty.

The crime of negligent homicide is defined and is punishable as .follows:

“Negligent homicide is the killing of a. human being by criminal negligence.
“The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
“Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.” La.R.S. 14:32.

Criminal negligence is defined as follows:

“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12.

The determination of guilt in criminal cases is vested by the Constitution in the trier of fact. This Court is limited on appeal to the decision of questions of law. La.Const. art. V, § 5(C) (1974). As long as there is some evidence of the essential elements of the crime charged, this Court has no authority to disturb the verdict. In this case there is some evidence. We have no difficulty in concluding that Calvin’s conduct under these circumstances amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

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

      . La.Code Crim.Proc. art. 778, as amended by Act 527 of 1975, provides:
      “In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
      “If the court denies a defendant’s motion for a direct verdict or judgment of acquittal at the close of the state’s case, the defendant may offer his evidence in defense.”


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Louis DABON, Appellant.
    No. 57741.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of possession of heroin with intent to distribute it, La.R.S. 40:966 (1973), and sentenced to life imprisonment. Upon his appeal, he relies upon one assignment of error.

The assignment relates to the failure of the state to disclose the name of a confidential informant. The defendant argues that obtaining this identity was essential to his defense.

We find no merit to this assignment: As will be elaborated below, the informant was not a witness to any act with which the defendant is charged, nor was disclosure of the informer’s identity relevant to any issue at the trial on the merits, at which disclosure was for the first time sought:

On the basis of information supplied by this informant, the police had maintained surveillance of certain premises and then had obtained a warrant to search the apartment. During the surveillance, at least two apparent drug sales were witnessed, in one of which the defendant participated and received money from a purchaser. As a result of the search pursuant to the warrant, some heroin was discovered attributable to the defendant’s possession.

Thus, the identity of the confidential informant was irrelevant to the determination of the accused’s guilt or innocence. The informant was not a witness to or participant in any act or event for which the defendant was on trial. His identity was not sought, for instance, in a hearing on a motion to suppress evidence directed at probable cause for a search or seizure; but only at the merit-trial in peripheral cross-examination of a police witness present at the arrest, in connection with ascertaining the reason for the officer’s undisputed presence on the scene at the time.

Under these circumstances, the trial court properly sustained the state’s objection to the defense question of the officer as to the name of his confidential informant. Probable cause for the search was not then an issue on the trial on the merits, nor is the denial to him of this information shown to be in any way prejudicial to his defense.

The informer privilege is based on the need of assuring a free disclosure of information to a governmental source through protecting against unnecessary disclosure, and upon the asserted governmental need of using such sources to obtain information as to covert types of criminal activities. It is generally recognized in Louisiana, although the secrecy of identity may be required to yield to competing interests of other constitutional or individual interests where circumstances show the overriding weight of the latter.

See: In re Baer, 310 So.2d 537 (La.1975); State v. Santos, 309 So.2d 129 (La.1975); State v. Rhodes, 308 So.2d 770 (La.1975); State v. Thorson, 302 So.2d 578 (La.1974); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971); Pugh, Louisiana Evidence Law 187-88 (1974). See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) and Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964).

As these decisions recognize, the privilege must give way where the disclosure of an informer’s identity or of the contents of his communication is relevant and helpful to the defense of an accused or to the fair determination of an issue before the court. See also Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

However, as demonstrated by our statement of the factual and legal context in which disclosure was sought, the present is not one of those relatively exceptional instances where disclosure of the informer’s identity is necessary to assure the fairness of the trial of any issue before the court, or is relevantly helpful to the accused’s defense of his innocence.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., concur.


text:
    STATE of Louisiana, Appellee, v. Ronnie TALLIE, Appellant.
    No. 57697.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Robert A. Hatcher, Houston, Tex., for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Robert L. Bailey, III, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Tallie was convicted of simple burglary, La.R.S. 14:62, and sentenced to imprisonment of nine years at hard labor. He perfected fourteen assignments of error; however, on appeal he argues only four principal issues.

The argued issues relate to: 1. The failure to inform him at the preliminary examination of the identity of a confidential informer; 2. the alleged unfair restriction of testimony in the hearing on the motion to suppress the evidence seized by an alleged unlawful search; 3. the alleged general unfairness of the trial on the merits through exclusion of certain evidence; and 4. the failure to afford a contradictory hearing on the motion for a new trial.

Context Facts

The defendant Tallie is charged with burglary of an American Legion home in Sli-dell. Objects stolen in the burglary were found in the possession of Tallie at Miss Overby’s residence, where he was staying.

Initially, the police had received information from confidential informants that Tal-lie had committed an armed robbery in the vicinity, that he was a fugitive from Alabama, that he was staying with Miss Over-by at her residence, that weapons used in the robbery and its proceeds were located there, that Tallie’s brother was staying there (who reportedly had also participated in the robbery), and that Tallie was using an assumed name (Clacker) and had a driver’s license in that name.

When the police went to the Overby home, they found Tallie’s brother and a man with a driver’s license in Clacker’s name. Miss Overby (as she admitted) initially gave the policemen verbal consent to search the premises, but a little afterwards withdrew the permission when they wanted her to verify it in writing after she commenced to object to the extent of the search.

The police officers arrested Tallie and his brother and took them to the police station, leaving an officer on watch outside the residence.

They secured a search warrant, based on the information obtained from confidential informants, to search the Overby house for two pistols and two bandannas used in the armed robbery and for the proceeds thereof.

When the police officers returned to the home and executed the warrant, they did not find the pistols or bandannas received in the robbery. However, they did find a sword, antique revolver, and bayonet matching the description of those reported as stolen in the recent burglary of the Legion home, as well as numerous packs of cigarettes of several different brands, a great deal of change in quarters, two bottles of gin, and other items consistent with the description of those stolen in that burglary. Confronted with this evidence, Tal-lie orally admitted to having committed the burglary.

1. The denial of access to the identity of a confidential informer at the preliminary examination.

The first argued issue by assignment of error no. 1 is based upon a preliminary examination held to determine whether there was probable cause to charge the defendant Tallie and a co-defendant (Miss Overby) with the present (American Legion) burglary and another. At the hearing, a police officer testified as to finding items stolen in both burglaries in Tallie’s room and elsewhere in Miss Overby’s premises. He and the victim of the other identified the items as stolen in the respective burglaries.

In explaining why he had initially gone to Miss Overby’s house, the police officer testified that he did so because he had received information from a confidential informant. This was that a male occupant of the home was a fugitive from Alabama and had committed an armed robbery in the immediate vicinity.

The defendant urges error was committed when, upon state objection, the trial court prevented him from hearing the identity of the informant by cross-examination of the officer.

There is no merit to this contention: Pre-termitting the validity of the privilege as to confidential informers, see State v. Dabon, 337 So.2d 502 (decided this date), the identity of the informant was irrelevant to any issue before the court at this hearing.

The preliminary examination is directed solely at whether there is probable cause to charge an accused with a specified offense. La.C.Cr.P. art. 296. The identity of the informer was not relevant evidence to determine the probable-cause issue. Evidence that goods stolen in the burglary were recovered from the accused’s possession through execution of a search warrant was relevant to probable cause. However, the identity of the informant who supplied the information upon which the warrant was secured had no relevance to any issue then before the court.

2. Testimony allegedly unfairly restricted at the hearing on the motion to suppress the evidence as illegally obtained.

The second argued issue was raised by the defendant’s assignment of error no. 2. The hearing on the motion to suppress was lengthy (Record pp. 123-215), and the trial court allowed the defendant great latitude in interrogating the police officers and in introducing his own evidence as to the alleged unlawfulness of the search. We note only two rulings made during the course of the lengthy hearing to which the defendant objected.

Despite this, the defendant now contends that the trial court unfairly restricted the scope of the hearing. He points out several excerpts from the hearing whereat (without objection at the time) the trial court reiterated that he regarded the issue before him as limited to the validity of the warrant and the search made thereunder.

With regard to the validity of the warrant, the police officers testified that the confidential informants involved had previously given them reliable information which had resulted in several convictions. Under jurisprudential standards now applicable, these indicia of reliability are sufficient.

The two rulings as to which formal objection at the time was made involved an inquiry as to the age of a confidential informer and as to whether he had a police record. The alleged purpose of these questions was to test the reliability of the informant (not of the affiant police officers, who had submitted their affidavit to the magistrate and had secured the search warrant).

The inquiry at a motion to suppress is directed at the sufficiency of the affidavit presented to the magistrate. The credibility of the affiants who themselves presented the information to the magistrate may be attacked, since a falsely sworn affidavit is a fraud on the court. However, the personal credibility of the informants who gave the information to the affiant cannot be investigated at such a motion, since this is not an issue (except insofar as the indicia of their reliability as a source of information) at the hearing to determine whether the magistrate issued the warrant upon probable cause shown to him.

See: State v. Cox, 330 So.2d 284 (La.1975); State v. Roach, 322 So.2d 222 (La.1975); State v. Giordano, 284 So.2d 880 (La.1973); State v. Melson, 284 So.2d 873 (La.1973); State v. George, 273 So.2d 34 (La.1973).

For purposes of the permissible inquiry at the motion to suppress, we find no shown relevance of the prior criminal record or age of the informants who gave information to the truthful affiant police officers.

During the hearing, no objection was made to the trial court’s comments now complained of at Tr. 41, 71-72 (where, in fact, the trial court permitted the defendant to proceed, see Tr. 74), Tr. 90 and 91 of the hearing transcript. At Tr. 74 and 91, the trial court specifically indicated a willingness to hear any more evidence the defendant desired to introduce, and we found no place at which defendant’s inquiry was in fact restricted.

Aside from the waiver of the right to complain by the failure to object at the time, La.C.Cr.P. art. 841, an examination of the transcript as a whole discloses no factual or legal basis for the defendant’s belated complaints of the curtailment of the scope of the evidentiary hearing. The testimony further reflects that the physical evidence was seized pursuant to a search resulting from a lawfully obtained warrant.

The motion to suppress was correctly denied.

3. Alleged unfair exclusion of evidence.

The specific complaint raised by this third argued issue is based upon assignment of error no. 5. The rulings designated as erroneous by that assignment denied the defendant the opportunity to cross-examine the arresting police officer as to the reasons he had arrested the defendant Tallie (i. e., the information received from a confidential informant that Tallie had committed an armed robbery) and as to the basis of the affidavit by which the search warrant was secured (i. e., information that the weapons and bandannas used in the armed robbery were at the Overby residence). The trial court sustained state objections to cross-examination of a police witness as to these issues.

The substance of the complaint is that thereby, the jury was misled into believing that the initial arrest and search warrant were on the basis of the present burglary rather than (merely!) of an armed robbery entirely distinct from the present burglary.

The trial court correctly ruled that, at the trial on the merits of innocence or guilt, no issue relevant to this case was raised by the probable-cause reasons for the defendant’s initial arrest or for the admission into evidence of physical evidence previously ruled admissible at a hearing on a motion to suppress it. See, e. g., State v. Mitchell, 278 So.2d 48 (La.1973).

Despite the accused’s complaint,. we further find no prejudice caused him by the rulings. To the contrary, the state courted reversible error if it had sought to introduce the affidavit containing allegations that the defendant had committed an unrelated other crime, or hearsay testimony that a confidential informer had so reported. See: La.R.S. 15:445, 446; State v. Meshell, 332 So.2d 767 (La.1976); State v. Thompson, 331 So.2d 848 (La.1976). Even indirect reference by a prosecutor to an unrelated crime alleged to have been committed by the accused, is regarded as so prejudicial to an accused as to mandate mistrial. La.C.Cr.P. art. 770(2); State v. Meshell, cited above. The rulings were therefore also justified as preventing injection into the trial of an essentially irrelevant side-issue to the prejudice of the accused.

We find no merit in the contentions raised by this issue.

4. The alleged denial of a contradictory hearing upon the motion for a new trial.

The motion for a new trial was filed in open court and denied the same day, in the presence of the defendant and his counsel. (At that time, they waived the delay for sentencing, and sentence was imposed.) See minute entry at Tr. 5.

The motion reiterates the alleged errors committed during the preliminary examination hearing, on the motion to suppress, and at the merit-trial which were the subject of the assignments of error. Their validity did not call for consideration of any evidence outside of the record made during these proceedings.

At the time the motion was denied, the defendant did not object to its immediate consideration by the court, nor to the court’s immediate disposition of it.

Aside from any lack of merit to the contention, the defendant on appeal claims to be error an action of the trial court neither objected to at the time, La.C.Cr.P. art. 841, nor designated by the defendant’s assignment of errors, La.C.Cr.P. art. 920. It therefore will not be considered by us.

Other assignments of error

The defendant does not argue and therefore abandons his other assignments of error, none of which appear to possess merit: assignments 3, 4, 6, 7, 8, 9, and 11, relating to evidentiary rulings; assignment 10, relating to a comment by the trial court; assignment 12, relating to the closing argument of the prosecutor; and assignments 13 and 14, relating to the instructions to the jury (which, moreover, were not objected to at the trial).

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . The remarks at Tr. 71-72 and 90 were directed at shortening the prosecutor’s cross-examination of defense witnesses, not at curtailing defense -inquiry, for instance.

      . Although not required to do so, State v. Mitchell, 278 So.2d 48, 53 (La.1973), the state introduced the search warrant and the return thereon without objection, Tr. 339, 340, to prove how it had obtained custody of the goods stolen in the burglary. When defense counsel sought to cross-examine the police officer as to the affidavit and application used to secure the warrant, the court correctly ruled that the application was not before the jury, Tr. 352, and that the introduction of the return into evidence was for the restricted purpose of identifying the objects allegedly taken in the burglary and allegedly found as a result of the search pursuant to the warrant. Tr. 355.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Lawrence E. JACKSON.
    No. 57747.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Alvin N. Taylor, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged by bill of information with the armed robbery (La.R.S. 14:64) of Lawrence Fagan on April 5, 1973, at the Triangle Bar, 916 St. Mary Street in New Orleans. Defendant was tried, convicted by a jury and sentenced to serve twenty years at hard labor. Defendant has filed three bills.

BILL OF EXCEPTIONS NO. 1.

This bill was taken to the court’s denial, following a hearing, of defendant’s Motion to Suppress Identification. The motion alleged generally that “defendant was viewed under circumstances which suggested that he was the perpetrator of the crime for which he is charged herein” and that the identification was therefore tainted and should be suppressed.

At approximately 10:05 P.M. on the night of April 5,1973, Lawrence Fagan was tending bar at the Triangle Bar when a man walked in with a gun and announced “this is a hold-up.” He pointed the gun in Fa-gan’s face and forced him to lie on the floor while he removed the money from the register and robbed a customer, Mr. Jack De-lancey. After the man left, Fagan called the police to report the robbery and described the perpetrator as a slim black male, in his early twenties, wearing a blue coat or shirt and dark grey pants. Fagan admitted on trial of the motion to suppress that he had not gotten a “good” look at the man’s features because the man had worn a scarf over his face throughout the robbery; he did, however, view him at close range and get a glimpse of his face beneath the mask. Approximately ten minutes after Fagan had made his report, the police apprehended a man a block and a half away from the Triangle Bar who fit the description Fagan had give them. This was the defendant, Lawrence E. Jackson. Defendant was then transported back to the scene of the crime where he was shown to Fagan and Jack Delancey, both of whom immediately identified defendant as the robber. Less than fifteen minutes had elapsed between the robbery and these identifications. Both Fa-gan and Delancey, as well as the patrolman who had exhibited defendant to them at the scene, testified that the identifications were made voluntarily, and that the police did not suggest to them that defendant was the robber. The only hint of suggestion which appears in the transcript is Delancey’s statement that after he had made his identification, the police had held a mask up to defendant’s face; however, this could not have ex post facto tainted the identification.

On April 16, 1973, defendant was exhibited in a line-up with six other men and identified by Fagan. Although Delancey was present at the line-up, he could not make a positive identification. According to the officer conducting the line-up, all of the members of the line-up fit defendant’s description. Both Fagan and Delancey made in-court identifications of defendant at trial. .

The test of a pre-indictment identification is whether the confrontation was so unnecessarily suggestive and conducive to mistaken identification as to deny the defendant due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), Although showups, such as the one here, are not favored, due process is not violated if the “totality of the circumstances” indicates that the identification was reliable. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See State v. Cloud, 319 So.2d 793 (La.1975), which involved similar facts.

There appears to have been an independent basis for both witnesses’ identifications. The robber confronted both of them at close range and each got a glimpse of his face beneath the mask.

Delancey’s identification at trial was perhaps less credible than was Fagan’s in view of his admission that while certain of the identification, both at the confrontation minutes after the robbery and at trial, he had been unable to pick defendant out of the line-up held eleven days after the robbery. This admission affected the weight which the trial jury afforded Delancey’s testimony. It does not establish that the confrontation was either impermissible, unnecessarily suggestive or conducive to mistaken identification.

Pagan’s identification on the other hand was unassailable. He was certain with respect to the identification which he made at the scene of the armed robbery and at trial and he did select defendant as the robber at the line-up.

In any event the in-court identifications of the two witnesses was not tainted, due process was not violated, and bill number one has no merit.

BILL OF EXCEPTIONS NO. 2.

Defendant claimed that his confession and other physical evidence seized by police was not obtained incidental to a valid arrest or search, and should therefore be suppressed. The motion was denied after a hearing and this bill was reserved.

Officer L. J. Canal testified that shortly after ten o’clock p.m. he received a report of an armed robbery on his police radio, and a description of the robber as being five feet, ten inches tall, with a medium build, and wearing dark clothing. A few minutes later, the officer observed defendant, who fit that description, walking several blocks away from the scene of the crime. The officer stated that as he stopped defendant, he noticed a large bulge in defendant’s waistband which he suspected was a gun, and that he frisked defendant and retrieved a fully loaded Walther T-38 automatic. Defendant was arrested and his handkerchief later seized after the witnesses identified it as that which defendant had worn as a mask during the robbery. There was no mention of a confession either at the hearing on the motion, or at trial.

The officer’s unrebutted testimony established that he had a right to seize the pistol from defendant’s waistband. La.C.Cr.P. art. 215.1 gives a law enforcement officer the right to stop any person in a public place when he has reasonable grounds to believe that person is committing, has committed, or is about to commit a crime. Under the circumstances of this case, it is submitted that the officer had reasonable cause to make an investigatory stop: defendant was in the immediate vicinity of the robbery minutes after it occurred and fit the description of the robber broadcast on the police radio. Incident to a reasonable stop, article 215.1 authorizes an officer to make a limited search of the suspect’s clothing for a dangerous weapon; it was in following this procedure that the officer recovered defendant’s gun.

Article 213 of the La. Code of Criminal Procedure provides that:

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

In State v. Johnson, 319 So.2d 786 (La.1975), the Court found that officers had reasonable cause to arrest a defendant who was apprehended in the area where a crime was known to have been committed and who matched the description of the suspect. Thus, the warrantless arrest in this case was valid, and having arrested defendant, the officer was justified in seizing the handkerchief. The Court said in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969):

“In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”

This bill is without merit.

BILL OF EXCEPTIONS NO. 3.

During the cross-examination of Jack Delaneey at trial, defense counsel questioned him as to his memory of the robber, his clothing and the scarf he had worn over his face; then, turning away from the witness, counsel asked the witness to describe his features and clothing. The witness responded that he could not answer because “I haven’t been paying that much attention to you.” On re-direct examination, the district attorney asked Delancey whether he would have paid more attention to defense counsel if he had committed an armed robbery, and defense counsel objected to the question. The judge ruled that the defense had opened this area on cross-examination, and he thus permitted the question to be put to the witness. Counsel reserved this bill of exceptions without further specifying the grounds for his objection. His formal bill of exceptions states that “the objection was to the court ruling that the State’s witness could not identify his articles of clothing because Mr. Delan-cey was not paying attention.” This was not the court’s ruling (the ruling was only to allow the question), but the witness’ answer. The question was proper re-direct examination in light of defense counsel’s earlier question and it was a proper exercise of the court’s discretion to permit it. Bill number three has no merit.

Accordingly defendant’s conviction and sentence are affirmed.


author: PER CURIAM. SUMMERS, Justice

text:
    STATE of Louisiana v. William HILLS, III.
    No. 57780.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Dissenting Opinion Oct. 5, 1976.
    Wiley R. Dial, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.,
   PER CURIAM.

Affirmed.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

While I agree that this judgment should be affirmed, I do not agree with the practice this Court has adopted of affirming serious criminal cases by a one-word judgment: “Affirmed”. In this cycle twenty-six such judgments have been handed down.

In my view fully researched and justified opinions serve an essential function in the process of adjudication in state courts of last resort.

Principally, in affirming a conviction the opinion informs the defendant and his counsel of the reasons why the Court has rejected their claim of error in the trial. From this source the litigant learns of the consideration given to his case. Only an insensitive attitude would deny this defendant that much on his sentence to imprisonment for the rest of his life.

By reference to a court opinion the loser is afforded an opportunity to determine whether a rehearing can be obtained in order that he might point out to the Court errors which he believes it has committed. At the same time, the opinion informs him if there is a basis for resort to a higher forum. If the opinion is accurate in its facts and supported by the law, the condemned man, although he may never openly concede the fact, is conciliated thereby and justice is done.

Opinions serve, also, to inform the public. As public records, they articulate the answers to vital issues in the field of criminal law which are of such paramount importance at this time. When widely disseminated in the news media, they assist the public generally in determining future conduct. Opinions serve, too, where judges are elected, to keep the public informed on the performance of the judges.

At the same time opinions are a principal source of law for deciding future cases, and judges and lawyers are instructed by them. The Court’s opinion should declare and settle the law for the legal profession with regard to the particular facts involved in the case. And a statement of the essential facts upon which the decision rests must be stated in every opinion. On the other hand, (in view of the Court’s readiness to depart from previously settled principles) written opinions will disclose the juristic revolution openly if it is the judicial purpose to work one. In this connection, the use of the per curiam further shrouds the adjudication, failing as it does to name the justice principally responsible for the research and suggested decision the Court has adopted.

Not the least important of the functions a written opinion fulfills is that writing them enforces research, a more thorough examination of the record and the more thoughtful deliberation so essential to produce the likelihood of a just result. Thereby snap judgments are avoided.

It may be said, therefore, that the considered rendition of opinions is a mode of doing justice. To abandon the practice is to erode the safeguards which opinions furnish in the appellate process. To do so is a compromise with a method proven by practice, tradition and custom. A long-settled proposition holds that a judgment which does not contain the reasons on which it is founded is unconstitutional and null. Henderson v. Bowles, 3 Mart. (N.S.) 152 (La. 1824). Compare State v. Andry, 260 La. 79, 255 So.2d 81 (1971), Summers, J., dissenting. Such a departure will surely impair the attainment of the high quality of justice which courts should constantly strive to attain.

Aside from these salutary and basic considerations, there is a constitutional impediment to dispensing with opinions in these cases. At the time of the adoption of the Constitution of 1974 the procedure adopted in this case, for rendition of judgment, had never before been employed in this Court’s history, so far as I can determine. It is my belief that it was not the intention of the drafters of our 1974 Constitution to either permit or bring about such a change when they proclaimed that “a case shall be ap-pealable to the supreme court if . the defendant has been convicted of a felony . . .” La.Const. art. V, § 5(D). (emphasis added).

A predominant theme of the convention was to bring about brevity in the new draft; and, therefore, those responsible for the Constitution undoubtedly contemplated, without articulating the obvious, that the appellate process in this Court would thereafter be in keeping with the concept of appellate practice as it then existed; full opinions being the long-standing practice. Most, if not all, of the delegates, I believe, intended that the appeal they guaranteed to those convicted of serious crimes would be in accordance with the then existing practice calling for full opinions. No manifestation of an intention to change that concept is in evidence. For example, the predecessor Article (La.Const. art. VII, § 10 (1921)) deals with the same subject matter, and, insofar as the nature of the appeal is concerned, the new article makes no change. This pertinent language of the 1921 Constitution supports that conclusion: “The following cases shall be appealable to the Supreme Court . . . . Criminal cases in which the penalty of death or imprisonment at hard labor [felony] may be imposed . . . .” (emphasis added).

This intention is expressed by the Chairman of the Committee on the Judiciary of the Convention when he explained to the delegates that “[t]his section (La.Const. art. V, § 5) represents no great change from the present constitutional provisions.” With particular reference to the distinction between the Court’s having a choice in matters heard under its supervisory jurisdiction and the mandatory jurisdiction imposed by sub-section (D) of Section 5 of Article V, he explained that the Supreme Court “has no discretion” and “must hear these kind of cases” — such as felony convictions which have been appealed. Constitutional Convention of 1973, Verbatim Transcripts, Vol. IX, p. 50-51 (30th Day’s Proceedings, Aug. 15,1973). As I read the explanation, it is a representation to the delegates that no substantial change would result from the new constitutional provision on the appeals of criminal cases for the Supreme Court.

Thus, in my view, the Court gives these “Affirmed” cases a treatment similar to that accorded an application for writs which does not require a judgment of the Court on its merits. Writ applications are made under the Court’s supervisory jurisdiction, La.Const. art. V, § 5(A) (1974), — not its appellate jurisdiction, and the difference is significant. In the case of an application for writs under this Court’s supervisory jurisdiction, the Court is granted plenary power to grant or deny the application without a written opinion. The reason is this denial is not a “judgment”, but is, instead, the exercise of the Court’s constitutional authority to review or not to review the judgment. In the case of an appeal, however, no like authority is granted. To the contrary, the Constitution mandates that the Court take the case and accord it the treatment appeals contemplate; this, I say, is a full opinion, not a one-word disposition.

In the Court’s anxiety to keep its calendar current it has failed to abide by the Constitution, the established appellate practice at the time of the adoption of the Constitution, and the long-standing custom and tradition in Louisiana’s law. In doing so, in my view, due process is denied this litigant under the Federal and State Constitutions. U.S.Const. amend. V, amend. XIV, § 1; La.Const. art. I, § 2 (1974). For, when appellate practice requiring full opinions is so well-established and of such long-standing, its abolition denies the litigant a right he expected and a process which is his due. Measured against the urge to maintain a current calendar and the desire to alleviate the Court’s labors, the Louisiana constitutional requirement of Article V, Section 5(D), and the due process guarantees embodied in the Federal and State Constitutions must prevail.

It is an inescapable fact that the criminal docket of this Court has increased immeasurably in recent years, and the task of keeping current is extremely burdensome. But the relief must come from constitutional amendments relieving this Court of direct appeals in criminal cases. The right to direct criminal appeals must be transferred to the Courts of Appeal. Those judgments will then be reviewed by this Court on applications for writs. Unless this is accomplished soon, these “Per curiam affirmed” opinions foretell a significant reduction in the quality of criminal justice in this State.

I, therefore, dissent from this Court’s adoption of this practice.

      . # 57,780, State v. Hills; # 57,791, State v. Duhon; # 57,793, State v. Willis; # 57,867, State v. McQueen; # 57,877, State v. Bernhard; # 57,901, State v. Carter and Mealey; # 57,902, State v. Farrell; # 57,916, State v. Robinson; # 57,927, State v. Darby; # 57,928, State v. Johnson; # 57,930, State v. Brown and Storks; # 57,939, State v. Matthews; # 57,940, State v. Veal; # 57,965, State v. Sumler; # 57,970, State v. Jones; # 57,985, State v. Hills; # 58,006, State v. Henry; # 58,008, State v. Hickerson; # 58,042, State v. Every; # 58,043, State v. McCoy; # 58,093, State v. Lacey; # 58,119, State v. Benion; # 58,130, State v. Ezeb; # 58,152, State v. York; # 58,156, State v. Yokum; # 58,168, State v. Jones.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Lovaughn LEWIS.
    No. 58267.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Lovaughn Lewis applying for Writ of Review

Writ denied: The application is premature, since sentence has not been imposed. The exhibits attached hereto may be incorporated by reference in any subsequent application.

SUMMERS, J., is of the opinion this application is without merit.

CALOGERO, J.,

concurs in writ denial for the stated reason, noting that pre-sen-tence, motion for new trial under Art. 851(5) is yet available to defendant.


author: SUMMERS, J., CALOGERO, J.,

text:
    Wade O. MARTIN, Jr. v. The LOUISIANA STADIUM AND EXPOSITION DISTRICT et al.
    No. 58622.
    Supreme Court of Louisiana.
    Sept. 23, 1976.
   In re Wade O. Martin, Jr., and The Louisiana Stadium and Exposition District et al. applying for Supervisory Jurisdiction and Writ of Certiorari.

Writ refused. The showing made does not warrant the extraordinary intervention of this court, especially in view of the fact that the trial judge has attested that he can give the case an expeditious hearing.

SUMMERS, J.,

concurs and is of the additional opinion that the applicants have too long delayed the prosecution of this litigation to now seek the extraordinary relief prayed for.

CALOGERO, J.,

recused for the reason that while a practicing attorney he rendered counsel to one of the litigants herein with respect to one of the legal issues involved in this application; namely, applica-bilities of the public bid law to the LSED before adoption of the 1974 La. Constitution.


text:
    Clyde B. BUTLER v. The “BOARD OF TRUSTEES” OF “the ELECTRICAL WORKERS PENSION AND RELIEF FUND OF the CITY OF MONROE, Louisiana” and the City of Monroe, Louisiana.
    No. 58330.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re; Clyde B. Butler applying for cer-tiorari or writ to review to the Court of Appeal, 333 So.2d 676, Second Circuit, Parish of Ouachita.

Writ denied: No error of law.

DIXON, J., is of the opinion the writ should be granted.

DENNIS, J., is of the opinion the writ should be granted.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Jefferson JOHNSON and Solomon Pollard.
    No. 58669.
    Supreme Court of Louisiana.
    Sept. 28, 1976.
   In re: State of Louisiana, through District Attorney for Orleans Parish applying for Writ of Certiorari

Writ denied. The evidentiary record here is insufficient for us to rule upon this important question at this time, thus interrupting the orderly proceedings in the trial court.

SUMMERS, J.,

is of the opinion that the ruling of the trial judge is made on an improper showing by defendant. This court should order a hearing in the trial court with a view to hearing evidence relating to the organization funding and procedure involved in establishing, dispensing and other use of the computer information. Failing this, the writ should be granted and the ruling of the trial judge should be vacated.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. 16th JUDICIAL DISTRICT COURT, PARISH OF ST. MARY.
    No. 58344.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
    Writ Refused Dec. 1, 1976.
   In re Quenton N. Brown applying for Writ of Habeas Corpus.

Writ denied. The ruling of the trial judge is correct.

DIXON, J.,

dissents from the denial. The bill of information is invalid. This court has not ruled upon it. The writ should be granted. C.Cr.P. 362, comment (h) of the off. rev. comment.


text:
    Succession of Jack A. MARTIN, Sr.
    No. 58397.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Iris Matthews Martin applying for certiorari, or writ of review, to the Court of Appeal,335 So.2d 494, Second Circuit, Parish of Caddo.

Writ denied. On the facts found by the court of appeal, there is no error in te judgment.

DENNIS, J., is of the opinion the writ should be granted.


text:
    Buford McDaniel v. Frank A. HOWARD, Sheriff of Vernon Parish.
    No. 58413.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Buford McDaniel applying for Remedial Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Not considered — appeal pending.

CALOGERO, J.,

concurs in denial. While I’m not convinced that C.Cr.Pr. art. 363 bars habeas corpus as to matters which defendants could not practically have assigned as error in connection with his appeal, I concur inasmuch as applicant may just as expeditiously have his contentions entertained by filing his writ of habeas corpus anew fairly soon, in the event his conviction is affirmed on appeal.


text:
    Jerry D. BUNCH v. UNDERWRITER’S AT LLOYD’S LONDON et al.
    No. 58162.
    Supreme Court of Louisiana.
    June 14, 1976.
   In re: Jerry D. Bunch applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge. 331 So.2d 851.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Mrs. Tatiana Turan DUE v. Paul H. DUE.
    No. 58226.
    Supreme Court of Louisiana.
    June 22, 1976.
   In re: Paul H. Due applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 331 So.2d 858.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    John H. MORGAN, Ind. v. MATLACK, INC., et al.
    No. 58248.
    Supreme Court of Louisiana.
    June 24, 1976.
   In re: John H. Morgan, Ind., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 331 So.2d 568.

It is ordered that the writ of review issue; that that Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Carolyn Ann ROBINSON and Frank J. Tornabene v. Robert GRAVES, Jr. and New Orleans Public Service, Inc.
    No. 58304.
    Supreme Court of Louisiana.
    July 8, 1976.
   In re: Carolyn Ann Robinson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 332 So.2d 303.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Herman PIERRE et ux. v. Bevelyn D. LANDRY and Fireman’s Fund Ins. Co.
    No. 58309.
    Supreme Court of Louisiana.
    July 9, 1976.
   In re: Pearl Pierre and Herman Pierre applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 332 So.2d 554.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    John R. PEREZ, Jr. v. Hon. Edwin W. EDWARDS, Governor, State of Louisiana, et al.
    No. 58469.
    Supreme Court of Louisiana.
    Aug. 12, 1976.
   In re: John R. Perez, Jr. applying for writs of certiorari, prohibition and mandamus.

Writ refused. We find no error in the result of the court of appeal decision.


text:
    William David SMITH v. LOUISIANA WELDING SUPPLY COMPANY, INC., et al.
    No. 58255.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: William David Smith applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 331 So.2d 606.

Writ denied. On the facts found, the result is correct.


text:
    Hilton VERRETT, Sr. v. OFFSHORE CREWS, INC., et al.
    No. 58227.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Walker-Huthnance Offshore Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Mary. 332 So.2d 292.

Writ denied. Judgment is not final.


text:
    Anthony AMBROSIA v. CHEROKEE INSURANCE CO. and Richard J. Garrett.
    No. 58263.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Anthony Ambrosia applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 332 So.2d 559.

Writ denied. Judgment of court of appeal is correct.


text:
    Edward L. ARDOYNO, Jr., et al. v. Leonard S. UNGAR et al.
    No. 58498.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
   In re: Edward L. Ardoyno, Jr., William J. Mora, III, applying for supervisory writs of certiorari, prohibition and mandamus.

Writ refused. No abuse of discretion shown, and the petition otherwise lacks merit.


text:
    STATE of Louisiana v. Steven F. BRADLEY.
    No. 58325.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
   In re: Joseph Neves Marcal, III for Steven F. Bradley applying for writs of certiorari, mandamus and prohibition and stay order.

Writ denied. There is no abuse in the ruling of the trial judge.


text:
    STATE of Louisiana v. Darryl HARRIS.
    No. 58512.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
   In re: Darryl Harris applying for remedial writ.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Oliver P. Schulingkamp, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 1st day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    In re Larry EVERFIELD.
    No. 58308.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
   In re: Larry Everfield applying for writs of review, certiorari, prohibition, mandamus and stay order.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Al-wine M. Smith, Judge of the Sixth Judicial District, Court for the Parish of East Carroll, to transmit to the Supreme Court of Louisiana, on or before the 1st day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Horace PIERSON v. Hon. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 58122.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
   In re: Horace Pierson applying for writ of mandamus.

Mandamus granted.


text:
    John SAUCER v. Lemmie O. HIGHTOWER, Judge, Fourth Judicial District Court, State of Louisiana.
    No. 58284.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
   In re: John Saucer applying for supervisory writs of prohibition, mandamus and/or certiorari.

Writ granted. With respect to the eight films and four hundred forty-five (445) paperback books and any other items not heretofore ruled upon (and notwithstanding same have not been formally introduced at the hearing on the motion to suppress) the trial court is ordered to release same, or to re-convene and rule upon whether each such item properly falls within the scope of the search warrant, and accordingly whether each such item should or should not be suppressed.


text:
    STATE of Louisiana v. George W. D’ARTOIS.
    No. 58593.
    Supreme Court of Louisiana.
    Sept. 16, 1976.
   In re: George W. D’Artois applying for writs of certiorari, mandamus, prohibition and stay order.

Writ denied. No abuse of discretion in the trial judge’s ruling.


text:
    STATE of Louisiana v. J. Richard VILLARRUBIA and Gerard S. Satterlee.
    No. 58252.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: J. Richard Villarrubia and Gerard S. Satterlee applying for writs of certiorari, mandamus and prohibition.

Writ granted: Remanded for further evidence for the trial court to determine whether the district attorney has a personal interest in the prosecution, La.C.C.R.P. art. 680(1), by virtue of his law partnership or marital community in the legal representation of the victim.


text:
    STATE of Louisiana v. Kenny REEVES.
    No. 58173.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Kenny Reeves applying for writ of review and stay order.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Edward M. Mouser, Judge of the 33rd Judicial District, Court for the Parish of Allen, to transmit to the Supreme Court of Louisiana, on or before the 8th day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Vincent HARRIS.
    No. 58250.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: State of Louisiana applying for writ of certiorari.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph F. Becker, III, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 8th day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Mrs. Ruby Yvonne H. OGDEN v. John Randolph OGDEN.
    No. 58214.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Mrs. Ruby Yvonne H. Ogden applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 331 So.2d 592.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment of that court.


text:
    Lynwood Logan VALLEE v. Pearl Hughes RICHARDSON et al.
    No. 58218.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Pearl Hughes Richardson, et al. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Grant. 331 So.2d 201.

Writ denied. On the facts found the result is correct.


text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. W. A. BOOK, Clerk of Court, Seventh Judicial District Court, Parish of Catahoula, Respondent.
    No. 58206.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Simon Smith, Jr., applying for writ of mandamus.

Writ denied. The matter is now moot, since the trial judge has ruled on petition.


text:
    STATE of Louisiana v. Robert Curtis DOZIER, Sr.
    No. 58174.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Robert Curtis Dozier, Sr. applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied: No error of law or abuse of discretion shown.


text:
    Ivy J. THIBODEAUX et al. v. Albert J. SALASSI et al.
    No. 58223.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Albert J. Salassi, et al. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of Terre-bonne. 331 So.2d 571.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    Harry BASS v. LOUISIANA POWER & LIGHT COMPANY et al.
    No. 58321.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Louisiana Power & Light Company, et al. applying for writ of certiorari or review.

Writ denied. The complained of ruling is not final.


text:
    Succession of Benjamin E. SMITH.
    No. 58251.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Lillian Massimini Bowman, individually, et al. applying for writ of certiorari.

Writ denied. On the basis of this application and the legal principles involved, we find no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana v. Glenn LeBLANC.
    No. 58244.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Glenn LeBlanc applying for writs of review.

Writ denied. No error of law shown.


text:
    Edward Joseph CROSS v. DELGADO JUNIOR COLLEGE.
    No. 58243.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Delgado Junior College applying for certiorari or writ of review to the Court of Appeal, First Circuit (La. State Civil Ser. Comm). 331 So.2d 599.

Writ denied. No error of law.


text:
    Joe LEE v. ALLIED CHEMICAL CORP. et al.
    No. 58234.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: National Maintenance Corp. and Fireman’s Fund Ins. Co. (Third-Party Defendants-Appellees) applying for certiorari, or writ of review, to the Court of Appeal, First Circuit Parish of East Baton Rouge. 331 So.2d 608.

Writ denied. Since the court of appeal reversed a summary judgment and remanded the judgment is not final and will not be reviewed at this time.


text:
    STATE of Louisiana v. Arthur A. MAURICE.
    No. 58260.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Arthur A. Maurice applying for writs of certiorari, prohibition and mandamus.

Writ denied: No abuse of discretion shown in imposition of sentencing condition. La.C.Cr.P. arts. 894, 895A.


text:
    Floyd A. RUE, Jr. v. Emmanuel K. MESSMER and Protective National Insurance Company.
    No. 58302.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Protective National Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 332 So.2d 591.

Writ denied. Under the assignments presented, there is no error of law in the court of appeal judgment.


text:
    Villere REGGIO et al. v. LOUISIANA GAS SERVICE COMPANY et al.
    No. 58297.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Louisiana Gas Service Company et al. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 333 So.2d 394; 333 So.2d 395.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    STATE of Louisiana v. Curtis D. RAMSEY.
    No. 58281.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. The ruling of the trial judge is correct.


text:
    CITY OF BATON ROUGE v. Edward D. WILLIAMS.
    No. 58275.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Edward D. Williams applying for writ of review.

Not considered. This application is not properly before this Court.


text:
    CITY OF PORT ALLEN v. Gralin B. ROBINSON.
    No. 58264.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Gralin B. Robinson applying for supervisory writs and stay order.

Writ denied. There is no error of law in the trial court’s ruling.


text:
    Charles WILLIAMS v. LOUISIANA STATE BAR ASSOCIATION.
    No. 58642.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Charles Williams applying to be sworn in as member of Louisiana State Bar.

Application denied. Relator not entitled to relief sought.


text:
    Elnora Tate PERRY, Ind. and as natural tutrix of her minor children, Melvin Gerald Perry and Morlan Perry, v. Randy J. LAW et al. Jimmy PERRY, Jr. v. Randy J. LAW et al.
    No. 58416.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Elnora Tate Perry, Ind., etc., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 334 So.2d 523.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    Cecil PETTIS v. STATE of Louisiana, Through the STATE DEPARTMENT OF HOSPITALS, et al.
    No. 58393.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: La. Health and Human Resources Administration, Successor to the La. Dept, of Hospitals applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides, 336 So.2d 521.

Writ denied. On the facts found, the result is correct.


text:
    Cecil PETTIS v. PINECREST STATE SCHOOL et al.
    No. 58382.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: William L. Kirkpatrick and TriState Insurance Co. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides, 336 So.2d 521.

Writ denied. On the facts found, the result is correct.


text:
    Cecil PETTIS v. PINECREST STATE SCHOOL et al.
    No. 58381.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Earl H. Kent applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides. 336 So.2d 521.

Writ denied. On the facts found, the result is correct.


text:
    Mrs. Linda Lou HARDY v. CUMIS INSURANCE SOCIETY, INC. Jocelyn ARDOIN et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS and Cumis Insurance Society, Inc.
    No. 58380.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: State of Louisiana through the Department of Highways applying for cer-tiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Sabine. 333 So.2d 420; 333 So.2d 412.

Writ denied. On the facts found by the Court of Appeal there is no error in the judgment.


text:
    STATE of Louisiana ex rel. Robert Joseph WHITCOMB (aka John D. Morris) v. State of Louisiana, 19TH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH, and/or Louisiana Department of Corrections.
    No. 58356.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Robert Joseph Whitcomb (AKA John D. Morris) applying for writ of mandamus.

Writ refused. Since the trial judge ruled in this matter on September 1, 1976, the petition for mandamus is now moot.


text:
    CITY OF BATON ROUGE v. Marjorie W. MATHEWS.
    No. 58350.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Marjorie W. Mathews applying for writ of review, certiorari, prohibition and mandamus.

Not considered; not timely filed within 60 days of April 23 as fixed by trial judge.


text:
    Cecil PETTIS v. PINECREST STATE SCHOOL et al.
    No. 58339.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Cecil Pettis applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides. 336 So.2d 521.

Writ denied. On the facts found, the result is correct.


text:
    Cleve McGEE v. Nolie Virgil Spell HARRIS.
    No. 58335.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Nolie Virgil Spell Harris applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Calca-sieu. 333 So.2d 440.

Writ denied. No error of law.


text:
    Elnora Tate PERRY, Ind. and as natural tutrix of her minor children, Melvin Gerald Perry, Jr. and Morlan Perry v. Randy J. LAW et al. Jimmy PERRY, Jr. v. Randy J. LAW et al.
    No. 58334.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: State Farm Mutual Automobile Ins. Co. and Randy J. Law applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 334 So.2d 523.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment complained of.


text:
    STATE of Louisiana v. John D. EVANS.
    No. 58326.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: John D. Evans applying for writs of certiorari, prohibition and mandamus.

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


text:
    CITY OF WEST MONROE v. L. E. FREEMAN.
    No. 58323.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: L. E. Freeman applying for writ of certiorari.

Writ denied. The defendant successfully objected to introduction of the tests. The assignment relied upon does not raise an error of law.


text:
    Sybil Haydel, wife of/and Ernest MORIAL v. ORLEANS PARISH SCHOOL BOARD.
    No. 58315.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Orleans Parish School Board applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 332 So.2d 503.

Writ refused. On the assignments of error, there is no error in the result reflected by the Court of Appeal opinion.


text:
    Rock COUSINS v. CREST AIR CONDITIONING AND HEATING, INC.
    No. 58314.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Crest Air Conditioning and Heating, Inc. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 332 So.2d 543.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. Robert Wayne YOUNG v. PRESIDING JUDGE, 32ND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE.
    No. 58313.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Robert Wayne Young applying for writ of habeas corpus and mandamus.

Not considered. The records of the district court reflect that relief has not first been sought from it. We therefore do not consider this application, but we forward a copy of the original application to the district court for filing and its ruling thereupon.


text:
    Mrs. Bessie Viau, widow of Louis J. VIAU, Sr., et al. v. Clinton BATISTE et al.
    No. 58311.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Glenn Christopher Viau and Deborah Ann Viau applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 332 So.2d 512.

Application denied; no error of law.


text:
    Ed L. LANDRY et al. v. Ignatius J. BARRECA et al.
    No. 58305.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Ignatius J. Barreca applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 332 So.2d 594.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana ex rel., Bobby SNEED v. PRESIDING JUDGE, 2ND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE.
    No. 58300.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Bobby Sneed applying for writ of mandamus.

Writ refused. Since relator has been furnished a copy of the transcript sought, this petition is now moot.


text:
    STATE of Louisiana v. David SISSON.
    No. 57796.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: David Sisson applying for writs of certiorari, prohibition, mandamus and/or review.

Writ denied. Some evidence in the record supports conviction of the offense charged and every element of it. No reversible error of law is shown.


text:
    STATE of Louisiana v. Peter MANALE, Sr.
    No. 58333.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Nils Douglas, Magistrate Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 8th day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    CITY OF NEW ORLEANS v. Judy LYONS.
    No. 58277.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Judy Lyons applying for writs of certiorari, prohibition, mandamus and stay order.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph F. Becker, III, Judge of the Criminal District- Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 8th day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of relator should not be granted.


author: LEMMON, Judge. SAMUEL, Judge

text:
    Raymond A. MIX v. BOARD OF SUPERVISORS OF ELECTIONS, PARISH OF ORLEANS, et al.
    No. 8131.
    Court of Appeal of Louisiana, Fourth Circuit.
    Decree, September 17, 1976.
    Reasons, September 20, 1976.

      Charles E. Leche and Harry A. Rosenberg, New Orleans, for plaintiff-appellee.
    Frank G. De Salvo, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOUTALL, SCHOTT, MORIAL and BEER, JJ.
   LEMMON, Judge.

This election case poses the following question: Does R.S. 18:400 D entitle the sole Republican party candidate in an election to be represented by at least one commissioner in each voting precinct, even though he has not submitted a list of proposed commissioners within the time limit stated in R.S. 18:400 A. We answer no and reverse that portion of the trial court judgment which ordered the Board of Supervisors of Elections for the Parish of Orleans to allow Raymond Mix to submit his list.

I

Mix was the only candidate of the Republican party who qualified for the office of Councilman, District B, for the election scheduled to be held in the City of New Orleans on October 2, 1976. He did not submit a list of proposed commissioners pri- or to August 23, 1976, the deadline for doing so in this election, as calculated from R.S. 18:400 A.

Prior to the deadline five candidates of the Democratic party for the same office or for the office of Councilman-at-Large submitted various lists of proposed commissioners, each list naming one proposed commissioner for each precinct. These candidates collectively listed the same five commissioners in each precinct who had served in the judge and school board elections on August 14, 1976. As a result exactly five persons were proposed as commissioners in each and every precinct.

After the deadline had passed for submitting lists of proposed commissioners, the Board dispensed with the meeting required by R.S. 18:400 C for the purpose of selecting commissioners, inasmuch as the Board considered no selection process necessary.

On September 1, 1976 Mix attempted to submit a list of proposed commissioners (although he admitted he had been aware of the deadline imposed by R.S. 18:400 A). Since the deadline for submitting the list had passed, the Board refused to allow Mix to submit a list.

Mix then filed this mandamus action, seeking to require the Board to comply with the statutory selection procedures and to allow the Republican party to be represented by a commissioner in each precinct. After a summary trial on the merits, the trial court (1) ordered the Board to conduct a meeting at a specified date and time, and (2) granted Mix the right to submit a list of proposed commissioners prior to the meeting. The Board immediately filed this appeal.

II

The central issue is one of statutory construction.

Mix’s position in this controversy is that R.S. 18:400 D mandates that each political party having a candidate for office shall be entitled to be represented by at least one commissioner in each voting precinct, notwithstanding any other provisions of the open election system. Since he is the only Republican candidate, he contends (1) that he (or the party) is absolutely entitled to a commissioner in each precinct, notwithstanding his noncompliance with the deadline for submitting his list, and “regardless of the ‘wheel procedure’ ” for selecting commissioners, and (2) that he is certainly entitled under the facts of this case, where he attempted to submit a list prior to the date specified for the Board’s meeting to conduct the wheel procedure.

R.S. 18:400 D’s grant of entitlement to at least one commissioner “(n)otwithstanding any provisions of this Part to the contrary” contemplates that the statute shall prevail over any contrary provisions. Thus, in Brown v. Plaquemines Parish Bd. of Supervisors of Elections, 320 So.2d 542 (La.1975), the court held that when R.S. 18:400 A authorized only local candidates to submit lists of proposed commissioners (and thus prohibited non-local candidates from doing so), that was a provision contrary to R.S. 18:400 D’s grant of entitlement, and the court concluded that the latter provision must prevail. We emphasize that there was a conflict between provisions in that case, since the Republican candidate in the Brown case had absolutely no chance of ever having a commissioner under strict application of the local candidate provision.

In the present case, however, Mix, as a local candidate, could have submitted a list of proposed commissioners within the time specified. Thus, R.S. 18:400 A’s provision that a candidate may submit the list within the specified time (impliedly meaning that he may not submit a list thereafter) is not a provision contrary to R.S. 18:400 D’s grant of entitlement to at least one commissioner. Indeed, Mix not only was authorized by R.S. 18:400 A to submit a list, but also was guaranteed by R.S. 18:400 D that at least one of the persons he submitted in each precinct would be selected as a commissioner. He knowingly chose not to do so and now contends he (or his party) nevertheless is absolutely entitled to a commissioner in each precinct.

We hold there is no conflict between the pertinent provisions in this case and that R.S 18:400 D simply guarantees a commissioner to a party when at least one candidate of that party makes a timely request. We therefore conclude that while Mix (and the Republican party) was “entitled to be represented by at least one commissioner in each voting precinct”, he waived his entitlement by not complying with the other reasonable, non-contrary provision for securing this representation. Accordingly, we reverse that portion of the judgment of the trial court which declared that he has a right to submit a list of proposed commissioners.

III

We agree with that portion of the trial court’s judgment which orders the Board to meet to select the commissioners.

R.S. 18:400 C requires the Board to meet at a specified time and place and to hold a public drawing of the commissioners. The statute contemplates that five properly qualified commissioners will be named and certified at this meeting. One purpose of the statute is to insure that each candidate who has properly submitted a list will have a fair opportunity of having his qualified representatives chosen and of challenging unqualified or improperly submitted or selected representatives of other candidates. Even if the Board determines that exactly five persons have been properly proposed as commissioners in each precinct and that no drawing is therefore necessary, that determination must be made at an open meeting at the time and place specified in the statute. A telephone conference, or a closed meeting at another time or place, does not fulfill the requirements or the purpose of the statute.

We therefore affirm that part of the judgment ordering a meeting, and we refix the time and date.

DECREE

For these reasons, that portion of the judgment of the trial court which declares that Raymond A. Mix has the right to submit a list of proposed commissioners for each precinct in District B is reversed.

That portion of the judgment of the trial court which orders the Board of Supervisors of Elections, Parish of Orleans, to meet to select poll commissioners in accordance with R.S. 18:400 C is amended to fix the time of the meeting at 10:00 a.m. on Tuesday, September 21, 1976, and as amended, that portion of the judgment is affirmed.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.

SAMUEL, Judge

(concurring).

I agree the Board must hold its statutorily required open meeting and relator’s list must be refused as untimely submitted. However, I would dismiss the suit on the ground that relator has failed to prove he has not been afforded the one Republican commissioner in each voting precinct he claims as a matter of right under the statute. As correctly stated in footnote 2 of the majority opinion, both Republicans and Democrats are included in the commissioners timely submitted by the other candidates and, quite clearly, it was relator’s burden to allege and prove there were one or more voting precincts in which there was no Republican commissioner.

Accordingly, I respectfully concur.

      . R.S. 18:400 A and D provides in pertinent part as follows:
      “A. Each local candidate in any parish may, on or before 5:00 p.m. of the fortieth day prior to the date of any primary election ordered to be held in the district or parish, submit a list of proposed commissioners for each precinct in the parish where the candidate is to be voted for. The list shall be legibly written, or, by preference, typed, giving the post office address of each person on the list, together with the precinct or poll in the ward or parish in which the proposed commissioner is to serve.
      “D. Notwithstanding any provisions of this Part to the contrary, in every primary election held under the provisions of this Part each political party having one or more candidates for office shall be entitled to be represented by at least one commissioner in each voting precinct where such a candidate or candidates are to be voted upon in the manner hereinafter provided.
      “In the event that two or more political parties each have a candidate or candidates whose name appears on the ballot in that precinct and if during the drawing of the commissioners at least one of the commissioners does not represent each of the political parties, then the person selected by the board of supervisors to draw the balls from the wheel or receptacle shall dispose of the same number of balls that there are political parties to be represented, beginning with the last ball drawn which represents a political party for which a commissioner has already been selected. The person shall then draw another ball to replace the last such ball and continue such action until a commissioner is selected to fulfill the requirements hereof. The person shall continue the selection until each political party is represented by at least one commissioner.”

      . The record indicates that both Republicans and Democrats were included among those thus proposed as commissioners, but does not show whether or not there was a Republican commissioner in each precinct.

      . Since there were exactly five persons proposed as commissioners in each precinct, the Board reasoned it was not necessary to draw to determine which of the persons proposed would serve as commissioners and which would serve as poll watchers (as would have been necessary if more than five had been proposed), nor was it necessary to supplement the lists (as would have been necessary if less than five had been proposed).