text:
    STATE of Louisiana v. Charles Spurgeon BRYANT.
    No. 59218.
    Supreme Court of Louisiana.
    June 20, 1977.
    Thomas W. Davenport, Jr., for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., John R. Harrison, Stephenie W. Dawson, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Charles Spurgeon Bryant was indicted by the grand jury of the Parish of Ouachita for the crime of aggravated rape in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty as charged and was sentenced to death. His conviction and sentence were affirmed by this court on appeal. We granted defendant’s application for rehearing. On rehearing, we reinstated our original decree affirming the conviction and death penalty. Subsequent to this decision, the United States Supreme Court in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976) declared unconstitutional Louisiana’s mandatory death penalty for the crime of aggravated rape. Pursuant to-this decision, defendant filed a motion to set aside illegal sentence and a petition for a writ of habeas corpus seeking his immediate release, both of which were denied by the trial judge. Defendant then filed a motion to correct illegal sentence in which he sought immediate release and alternatively a new trial or resentencing to twenty years imprisonment at hard labor. After a hearing, the trial judge denied his motion insofar as it requested immediate release and a new trial, but annulled and set aside the death penalty and resentenced defendant to serve twenty years at hard labor. Defendant appeals this sentence relying upon three assignments of error. La.Code Crim.P. art. 882.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends that because he. was charged with the crime of aggravated rape and found guilty as charged, the only penalty which could be imposed was the sentence specified for aggravated rape in La.R.S. 14:42, namely mandatory death, and hence his sentence of twenty years imprisonment at hard labor is an illegal sentence. Furthermore, he argues that when the mandatory death penalty provision for aggravated rape was declared unconstitutional in Selman v. Louisiana, supra, the aggravated rape statute in its entirety was invalidated and therefore his conviction under the statute cannot stand.

Defendant’s contentions are without merit. Since Selman in cases where defendants have been convicted of aggravated rape and sentenced to death, this court, under the mandate of Selman, has set aside and vacated the death sentence but, finding no reversible error, has affirmed the convictions. For the reasons set forth in State v. Craig, 340 So.2d 191 (La.1976), State v. Lee, 340 So.2d 180 (La.1976), and State v. Sledge, 340 So.2d 205 (La.1976), we have held that, because the legislature obviously intended to impose the most serious penalty available under law for the crime of aggravated rape, the appropriate penalty since the invalidation of the mandatory death penalty is the most serious penalty for a lesser included offense at the time of the commission of the crime.

At the time of the commission of the present offense (October 18,1973), attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years while the crime of simple rape carried a penalty of imprisonment at hard labor for not less than one nor more than twenty years. Consequently, the most serious penalty which could be imposed for a lesser included offense in the present case was imprisonment at hard labor for twenty years. We therefore conclude that the sentence of twenty years imprisonment at hard labor imposed by the trial judge was the appropriate penalty.

Assignments of Error Nos. 1 and 2 lack substance.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that his sentence of twenty years imprisonment at hard labor is excessive in violation of La.Const. art. 1, § 20 (1974). The evidence presented at trial revealed that defendant had forcibly raped a woman while threatening her and her female companion with a knife and a gun.

La.Const. art. 1, § 20 (1974) provides in pertinent part:

No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. . . . (Emphasis added.)

Some of the members of this court, including the author of his opinion, are of the view that this constitutional provision only gives to this court the judicial power to declare as unconstitutional laws which provide for excessive sentences rather than extending the judicial power to appellate review of sentences imposed in individual cases. Other members of the court interpret the provision as conferring upon this court constitutional authority to review sentences imposed in individual cases. However, we need not resolve this issue in the present case for under either interpretation of the constitutional provision the sentence imposed here is clearly not excessive. In view of the gravity of the crime of aggravated rape and the circumstances surrounding its commission in this ease, the sentence of imprisonment at hard labor for twenty years imposed on defendant is not excessive.

Assignment of Error No. 3 is without merit.

DECREE

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

DENNIS, J., is recused, having performed a judicial act in the case in another court.

      . 325 So.2d 255 (La.1975).

      . Id. at 264.


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Robert C. GREEN.
    No. 59223.
    Supreme Court of Louisiana.
    June 20, 1977.
    Dwight D. Reed, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

This prosecution is governed by the Constitution of 1974 and is based upon a charge in a bill of information filed on April 16, 1975. The bill of information charged the defendant with knowingly and intentionally distributing heroin, a crime condemned and punished by life imprisonment by Section 966(A) of Title 40 of the Revised Statutes. He was tried by a jury and found guilty of the lesser included offense of possession of heroin and sentenced to be confined for ten years at hard labor. Appellant contends it was error to prosecute on a bill of information.

Section 15 of Article I of the Constitution of 1974, effective January 1, 1975, provides that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. Article 382 of the Code of Criminal Procedure, as amended in 1974, is to the same effect. This prosecution for the offense charged can only be instituted by a grand jury indictment and it was reversible error to proceed on the basis of a bill of information. State v. Stevenson, 334 So.2d 195 (La.1976).

The assignment of error has merit, as the trial judge and prosecutor candidly concede. For the reasons assigned, the conviction and sentence are reversed and set aside.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Eugene VERRETT, Appellant.
    No. 59225.
    Supreme Court of Louisiana.
    June 20, 1977.
    Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, First Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was sentenced to two years’ imprisonment at hard labor upon his conviction of simple escape. La.R.S. 14:110 A(l) (1975).

The defendant’s single assignment of error complains that his motion for a new trial was incorrectly denied. He claims no evidence at all shows that he escaped from the lawful custody of a law enforcement or corrections officer.

The context facts show:

The defendant was sentenced to the Department of Corrections. While a prisoner at the state penitentiary, he was assigned each day to work at a nearby state park under its superintendent. This assignment was made pursuant to the statutory authorization for the corrections department “to enter into contractual agreements for the use of inmate labor by any . . . agency of this state responsible for the conservation of natural resources * * La.R.S. 15:832.

The superintendent, A. B. Kennedy, picked the accused up each day from the penitentiary and returned him to it at night. During one workday, however, the defendant left the park without permission and returned to his home in Metairie. When he voluntarily returned to the penitentiary the following day, he was charged with escape.

The motion for a new trial complains that the evidence does not prove Kennedy, the park superintendent, to be a law enforcement or corrections officer within the meaning of the simple escape offense, La. R.S. 14:110 A(l): “The intentional departure of a person ... in the lawful custody of any law enforcement officer or officer of the Department of Corrections from any place where such person is legally confined.’ * * *” (Italics ours.)

The evidence shows that Kennedy, pursuant to authorization from the Department of Corrections, supervised the work of the defendant at the park. The evidence further shows that, pursuant to an oral agreement between the assistant director of the Department of Corrections and the local park superintendent, inmate labor was furnished to work at the park.

Pursuant to this agreement, the defendant was assigned to work at the park under the supervision of the park superintendent. He was in “lawful custody” at the park: He was there under the supervision of the superintendent as authorized by law. State v. Johns, 339 So.2d 801 (La.1976).

Under the circumstances, therefore, the defendant’s escape was from the lawful custody of an “officer of the Department of Corrections”: Kennedy was as authorized by law exercising supervision of the inmate on behalf of officers of the corrections department.

Accordingly, we do not find merit in the defendant’s assignment of error. We affirm his conviction and sentence.

AFFIRMED.

DIXON, J., dissents.

      .The superintendent also testified that there was a subsequent written agreement between the directors of the departments of corrections and of parks. This agreement was not, however, introduced into evidence, since the state witness (the superintendent) had not brought it with him.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Charles Joseph WILLIAMS.
    No. 59226.
    Supreme Court of Louisiana.
    June 20, 1977.

      D. Bert Garraway, Garraway & Daigle, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard Chaffin, Asst. Dist. Atty., for plaintiff-relator.
   CALOGERO, Justice.

Charles Joseph Williams was charged with one count of possession with intent to distribute a controlled dangerous substance, to wit: marijuana, in violation of La.R.S. 40:966(A) and with a second count of distribution of marijuana in violation of 40:966(A), both counts arising out of the same transaction. Defendant pleaded not guilty to both counts and filed a motion to suppress physical evidence seized pursuant to an allegedly unconstitutional search of his automobile and person. After a hearing, the trial judge ruled that defendant’s motion to suppress should be granted. No oral or written reasons for the ruling appear in the record. This Court granted the state’s application for certiorari to consider the propriety of the trial judge’s ruling. 342 So.2d 868 (La.1977)

The record of defendant’s suppression hearing indicates that an investigation into the defendant’s activities began after Russel Milan, a narcotics officer with the Louisiana State Police received information from two reliable confidential informants who had purportedly given information which in the past had proved correct and had led to arrests and the seizure of narcotic drugs. One informant told Officer Milan that the defendant resided at the Lakeview Apartments, Building 10350, apartment eight and was trafficking and distributing one pound quantities of marijuana in the Baton Rouge area. A second informant told Officer Milan on Friday, March 19, 1976, that defendant secured marijuana for distribution on trips to Austin, Texas, and that it was his normal procedure to get about twenty-five pounds there in kilos wrapped in brown paper and to cut the kilos into one pound quantities and place them in small paper bags rolled and taped. The informant further told Officer Milan that it was defendant’s procedure to place the bags in a cardboard box and to deal out of the trunk of his automobile, a maroon and white Pontiac with license numbers 214 A 976. This same informant then revealed that he had personal knowledge that the defendant would be making a trip to Austin to pick up marijuana that weekend and would be leaving that day, Friday, March 19, between 5:30 p. m. and 7:30 p. m. Officer Milan and several other officers then set up a surveillance of several locations defendant frequented and they searched for the car. Defendant’s car was not spotted until Monday morning at his place of employment in another parish. The officers had verified that the automobile described by the informant did, in fact, belong to the defendant. Officers Bell and White followed defendant to the Lakeside Apartments when he left work. Defendant arrived and parked about 5:20 p. m. in the complex parking lot. Officer Milan was already parked about fifty feet away and to the rear of defendant’s car. From this vantage point Officer Milan observed defendant walk around the building in the direction of apartment eight. About ten minutes later he returned to the car, opened the door to the driver’s side and appeared to be getting something when another car drove up and parked to the left of defendant’s automobile. A man and woman got out, approached defendant and conversed with him. Defendant then opened the trunk of his own car. The male visitor peered inside and picked up two large bundles wrapped together. All three people then walked around to the driver’s side of the Pontiac where defendant took out a three-inch stack of brown paper bags and then walked in the direction of apartment eight.

Officer Milan testified that from his experience and training in the packaging of narcotics (including a five-week course in the National Institute in Washington, D. C.) he was convinced that the commodity carried by the visitor from defendant’s trunk was marijuana. He stated that he “caught a glimpse” of what appeared to be “green vegetable matter.” At this point the officer, intending to prepare a warrant to search defendant’s apartment, radioed police headquarters to learn the duty judge to whom the application for search warrant should be submitted. In the meantime, at about 6:30 p. m. the two visitors, later identified as Dennis and Rebecca McGhee, exited the apartment dwelling, apparently from apartment eight. Dennis McGhee carried a small paper bag rolled and taped and also a weighing scale which Officer Milan recognized as an instrument used in dividing quantities of narcotics. He radioed Officers Harrell and White who stopped the McGhee automobile and arrested its two occupants a short distance away. Officer Milan received word that the McGhees were found in possession of about sixteen ounces of marijuana. At 7:00 p. m. defendant left his apartment carrying an open pasteboard box full of the small bags rolled and taped. Defendant put the box down beside his trunk and picked up two garbage bags also sitting on top of the box. After getting rid of the garbage bags he opened his trunk.

Officer Milan testified that from where he was parked he had a clear view of defendant’s trunk and his activities. As defendant put the box down the officer began approaching defendant from the rear. At about fifteen feet he testified that he could plainly see the contents of the box which fit the packaging method described by the informant. Defendant put the box in the trunk. When Officer Milan called to him he closed the trunk. After being instructed to open the trunk, defendant threw the trunk key into a wooded area. The police took defendant into custody and drove his car to troop headquarters. Officer Milan .returned to the scene, found the trunk key, and then returned to headquarters where he opened the trunk and seized twenty-three pounds of marijuana.

The state argues that the search of defendant’s automobile trunk was proper as a “plain view” search, the theory being that when the officers saw the cardboard box containing paper bags which, because of their experience and training they reasonably suspected to be marijuana, the contraband was in “plain view” and available for seizure without a search warrant. This argument lacks merit. •

It is well established that under certain circumstances the police may seize' evidence without a warrant under the theory that the object is in plain view. When a policeman has a right to be where he is and he inadvertently comes upon a piece of evidence, it would be not only inconvenient but also possibly dangerous to require him to-ignore it until he obtains a warrant particularly describing it. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). But when, for example, he has a warrant to search in a given area for specified objects, and in the course of the search discovers an incriminating piece of evidence, or where he inadvertently comes across evidence while in hot pursuit, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), he may seize it because it is in plain view. And when an object comes into a police officer’s view during a properly limited search incident to arrest, the evidence may be seized when it is in plain view. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Finally, officers who are not searching at all for evidence against the accused but who inadvertently come across an incriminating object have been allowed to seize it as being in plain view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

In all of these cases, however, the police officer had a prior justification for an intrusion in the course of which he inadvertently came across a piece of evidence incriminating the accused. Coolidge v. New Hampshire, supra; State v. Fearn, 345 So.2d 468 (La.1977). When a viewing of evidence is planned, as was the viewing in State v. Fearn, supra, and in the instant situation, the seizure cannot be justified as one in “plain view.” As was stated in State v. Fearn, supra, 345 So.2d at 471, “Plain view alone is never enough to justify a warrantless seizure.” See State v. Bourg, 332 So.2d 235 (La.1976); State v. Navarro, 312 So.2d 848 (La.1975); State v. Hargiss, 288 So.2d 633 (La.1974). This argument of the state has no merit.

The issue in the case, as we see it, is whether the seizure of contraband from the automobile was properly made on the basis that the officers had probable cause to seize the marijuana and exigent circumstances made the obtaining of a- warrant impracticable. State v. Lain, 347 So.2d 167; State v. Hearn, 340 So.2d 1365 (La.1976); State v. Jones, 315 So.2d 270 (La.1975); State v. Massey, 310 So.2d 557 (La.1975).

There is no question here but that the officers had probable cause to believe that the accused possessed and was distributing marijuana. The two informer tips, confirmed by their surveillance, and the apparent purchase, or receipt, of marijuana by the couple sufficiently established that the officers had probable cause to search the vehicle of the accused for contraband.

In order to reasonably search a vehicle under our law without a warrant, the situation must be under circumstances which make the obtaining of a warrant impracticable. State v. Lain, supra; State v. Hearn, supra; State v. Massey, supra. In order to justify a warrantless search of an automobile, the state must present facts which establish that “the opportunity to search is fleeting.” Chambers v. Maroney399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

In this case, at the time the officers approached the car and made their presence known to the accused, the opportunity to search was fleeting. Although defendant’s car was parked, the officers had information from an informant that the driver normally sold the marijuana from the trunk of his car, presumably while driving from place to place in it. The officers’ surveillance of the accused confirmed that the accused had contraband in his trunk, and his actions in putting out his garbage and going to his trunk suggested that his leaving was imminent. At the time the officers approached the car, therefore, the opportunity to search was fleeting, and thus, there were exigent circumstances present at that time which justified a warrantless search of the trunk of defendant’s vehicle.

It is strongly contended, however, that defendant’s action in throwing the trunk key into the woods, the removal of the car to the police station, and the delay of the search for approximately one and one-half hours until the key was found renders the subsequent search of the trunk at the station invalid because the exigent circumstances present at the scene had dissipated and it was possible for police to secure a search warrant, once the car had been impounded and was within police control.

In our recent opinion in State v. Lain, supra, we dealt with a similar situation. There, we found that the exigent circumstances which were present at the scene would justify a later search of an automobile parked at the police station only when it was reasonable for the officer to have moved the car to a location better suited to a safe and thorough search. Specifically, we stated that:

“Under exceptional circumstances it has been held that if there is a reasonable basis for moving the vehicle from the place where it was initially stopped, and at the time of the arrest the police had the legal right to search where the police eventually searched, and a relatively short time elapses between the decision to move the vehicle to a safer location and the ultimate search, then the search is constitutional. Chambers v. Maroney, 399 U.S. 42, 52 n. 10, 90 S.Ct. 1975, 1981 n. 10, 26 L.Ed.2d 419, 429 n. 10 (1970); State v. Thomas, 310 So.2d 517 (La.1975), supra; State v. McQueen, 278 So.2d 114 (La.1973), supra. Cf. also, Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (dissenting opinion). The search under these circumstances is said to be constitutional. State v. McQueen, supra.

There, we found that the late hour, the gathering of a crowd in a residential neighborhood, and the fact that police could not open the trunk without breaking into it justified the transfer of the car to a safer location where it was searched within a reasonable time.

When we apply the principles in Lain to the situation before us, we find that the transfer of the car to police headquarters was reasonable. The officers were being cautious in waiting until they had the key before searching the trunk in order to avoid breaking into it. Their waiting beside the car while the woods were searched might well have proved dangerous had the accused’s confederates appeared. The only reason that they did not then have the key which would have enabled them to make an immediate search without forcing the trunk was the defendant’s tossing the key into the woods. And we do not find the length of the delay before search unreasonable under these particular circumstances.

For these reasons, we reverse the ruling of the trial judge granting defendant’s motion to suppress, and we remand the case for trial.

SANDERS, C. J., concurs in decree.

MARCUS and DENNIS, JJ., concur.

      . Only the state introduced evidence at the suppression hearing; defendant Williams did not take the stand.

      . Although this author personally believes, along with two of the other Justices of this Court, that when an automobile has been taken into police custody at a stationhouse that a search should never be authorized without a warrant even though “exigent circumstances” had existed earlier at the scene, the state of the law is otherwise. Therefore, the majority rationale in Lain has been applied here.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Vera Mae CARTER.
    No. 59228.
    Supreme Court of Louisiana.
    June 20, 1977.
    Tilden Greenbaum, III, 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 Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On April 12, 1973 defendant Vera Mae Carter was convicted by a jury for possession of seconal, a controlled dangerous substance, and subsequently sentenced to four years at hard labor.

On appeal only two assignments are briefed. Assignment of Error No. 2 concerns the denial of the motion to suppress. Assignment of Error Nos. 3 and 5 concern the qualifications of police officers as experts in matters concerning the sale of controlled dangerous substances. The other assignments reserved at trial are neither briefed nor argued, and are deemed abandoned.

Assignment of Error No. 2

At 9:15 p.m. on September 18, 1972 three plain-clothes officers in an unmarked automobile were driving near a playground in the City of New Orleans. They saw and recognized two women, whom the officers knew as narcotics users, inside the chain link fence between the sidewalk and the playing field. The two women were the defendant and a companion, Ola Mae Dela-houssaye. There was no ball game at the time, but the playing field was lighted. The women were somewhere around thirty feet from the street where the police automobile passed, standing in a passageway between some temporary bleachers erected at the side of the playing field. The police were on the lookout for narcotics transactions in the playground, since it was known to be a place, near a housing project, where narcotics traffic occurred. The police saw paper money in the hands of one of the women, and concluded that they were observing a narcotics transaction. The police vehicle continued to an intersection, made a turn, and swung back around by the park. When they saw the women again, they were on the sidewalk. The police stopped the automobile adjacent to the women, disembarked and approached defendant and her companion. One officer, as he approached Ola Mae Delahoussaye, saw a handkerchief in her open palm. On the handkerchief was a cellophane packet containing a few red capsules, which he identified as seconal. The arrest followed.

The argument is made that there was an unconstitutional seizure and search, relying on State v. Saia, 302 So.2d 869 (La.1974).

The reliance is misplaced. In the case before us there was no seizure as a result of an artificially created “street encounter.” The police had a right to approach the defendant and her companion. The defendant and her companion made no effort to hide the contraband, since they were unaware of the approach of the officers, who could tell from what they easily saw that a crime was being committed in their presence.

There is no merit in this assignment.

Assignments of Error Nos. 3 and 5

Defendant contends that the trial judge erred in accepting Officers Branham and Haab as experts in the procedures and techniques employed in the sale and exchange of controlled dangerous substances in the City of New Orleans. Defendant argues that the “field of illicit street deals” is not an appropriate area in which to permit expert testimony since it is vague and is not susceptible to scientific training or knowledge.

At trial Officer Branham testified that he had served five years on the narcotics squad and had engaged in surveillance and undercover work during that period. He had personally observed numerous drug transactions take place. Although he had never been qualified as an expert in the field of drug trafficking, he had been qualified as an expert on controlled dangerous substances on several occasions. Officer Haab testified that he had been with the narcotics division for four years and had engaged in undercover activities for eight months. He had special training on drug use and distribution in the form of lectures at the crime lab and on-the-job training in the field. In addition, he had participated in three to four hundred narcotics arrests and had qualified as an expert on narcotics in other cases.

R.S. 15:464 provides: “On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.” Thus, as long as the expert testifies about matters knowledge of which he has obtained through special training or experience, it is not necessary that the subject to be discussed be susceptible of scientific training or knowledge. See State v. Marks, 337 So.2d 1177 (La.1976); State v. Tornabene, 337 So.2d 214 (La.1976); State v. McCray, 327 So.2d 408 (La.1976). The knowledge of the procedures and techniques commonly used in the sale and exchange of controlled dangerous substances is not generally possessed by the public at large but requires special training or experience to acquire. Although the prosecuting attorney initially attempted to qualify the officers in the broad area of “drugs and the transactions surrounding drugs,” after further questioning the officers were submitted as experts in the procedures and techniques employed in the sale and exchange of controlled dangerous substances in the City of New Orleans. Thus, the experts were accepted in a clearly defined area which was not vague and which was appropriate for expert opinion.

R.S. 15:466 provides: “The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.” It has been consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge and that his rulings upon the expert’s qualifications will not be disturbed absent a clear showing of an abuse of discretion. See e. g., State v. Marks, supra; State v. Tornabene, supra. Since the officers had a great deal of practical experience and knowledge in the techniques and procedures employed in the sale and exchange of controlled dangerous substances in the City of New Orleans, the defendant has not demonstrated that the judge abused his discretion in accepting the officers as experts in this area.

There is no merit in these assignments.

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


author: PER CURIAM.

text:
    STATE of Louisiana v. Shelly Herman BRAWLEY.
    No. 59241.
    Supreme Court of Louisiana.
    June 20, 1977.
    Bryan E. Bush, Jr., Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren J. Hebert, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-relator.
   PER CURIAM.

This case presents questions of whether a search warrant affidavit sufficiently sets forth facts and circumstances from which a magistrate could conclude that probable cause existed for the issuance of a warrant.

An East Baton Rouge Parish sheriffs deputy and a Louisiana Department of Justice investigator applied to a district judge for a warrant to search for stolen merchandise in the home of the defendant, Shelly Brawley. In support of their application, the officers submitted an affidavit which, in relevant part, recited that:

“Affiants inform the Court that they are participating in the investigation of numerous burglaries in the Parishes of Avoyelles, Rapides, East Baton Rouge, East Feliciana and Ascension.
“One of the participants in the two burglaries in Avoyelles Parish, Donald Ray Caine, who was arrested on the morning of March 29, 1976, immediately following the two (2) burglaries, agreed to cooperate with Investigators after being properly advised of and waiving his rights against self-incrimination.
“During the course of a statement made to affiants by Caine, Caine admitted to being a participant in the burglary of Tri-Parish Co-op, located in Clinton, East Feliciana Parish, Louisiana, at approximately 1:30 a.m., March 17, 1976. Taken in the burglary were the above described tools. Caine further stated to affiants that he was accompanied by Grandville Tennart, Willard Clark, and Calvin Wilson during the perpetration of this burglary. Grandville Tennart stated to Caine that Tennart had dropped a .22 caliber pistol while scaling a fence surrounding the Co-op. Deputy Albert Mof-fit, East Feliciana Parish Sheriff’s Office, recovered a .22 caliber ‘R.G.’ model 14 revolver bearing serial number 440443 near the fence. This pistol was determined by Moffit to have been stolen from the Western Auto Store in Donaldson-ville, Ascension Parish, Louisiana at approximately 10:00 p.m. on the evening of March 16, 1976, (or approximately Zlh hours prior to the burglary of Tri-Parish Co-op).
“Affiants learned from the Donaldson-ville Police Department that the additional items described above were taken during the burglary of the Western Auto Store.
“Affiants further inform the Court that they have received additional information concerning the burglary in the Parish of East Baton Rouge and have received a substantial quantity of stolen goods by acting upon this information. Donald Ray Caine provided information to the effect that Calvin Wilson had perpetrated the burglaries of the Tri-Parish Co-op and the Firestone Tire Store located at 5309 Plank Road, Baton Rouge, Louisiana.
“Affiants further inform the Court that acting upon information supplied by Donald Ray Caine, they have recovered tires taken by Calvin Wilson and others from Tri-Parish Co-op and the Western Auto Store in Donaldsonville, Louisiana.
“Affiants also inform the Court that Donald Ray Caine has stated to affiants that Caine accompanied Calvin Wilson to the residence of Shelley H. Brawley, at which time Calvin Wilson sold an IBM electric typewriter to Brawley. Caine also stated that, on a separate occasion he accompanied Calvin Wilson to Scenic Plating Works, Brawley’s place of business, at which time Calvin Wilson sold a pistol to Brawley. Calvin Wilson has told Donald Ray Caine that both the pistol and typewriter were stolen. Additionally, Calvin Wilson has told Donald Ray Caine that Wilson has sold a quantity of stolen tools to Brawley, and that these tools are concealed at either Brawley’s residence or at Brawley’s place of business. Caine stated that the above described merchandise was sold by Wilson to Brawley during late February or early March, 1976.”

The search warrant was issued.

In executing the warrant, the officers entered the premises and seized two weapons, a .22 caliber pistol and a 16-gauge sawed-off shotgun. After being charged with possession of an unregistered sawed-off shotgun in violation of La.R.S. 40:1783-85, 1791, defendant successfully moved the district court to suppress the evidence.

Although the sawed-off shotgun was not an item named in the search warrant, no contention has been made that the search was invalid for this reason. Instead, the defendant argued, and the district court without assigning reasons apparently agreed, that the affidavit did not provide a sufficient basis for a finding of probable cause.

If hearsay information is an essential element in establishing the sufficiency of the affidavit, the magistrate must be informed of underlying circumstances which show that the informant was in a position to observe the facts reported, and underlying circumstances which show that the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Paciera, 290 So.2d 681 (La.1974); State v. Linkletter, 286 So.2d 321 (La.1973); State v. Wells, 253 La. 925, 221 So.2d 50 (1969).

In the instant case the affidavit reflected both personal observations of the officers and hearsay information provided by Donald Ray Caine, an informant. Caine had confessed to the officers that he committed three burglaries in neighboring parishes and definitely named Calvin Wilson, Grand-ville Tennart and Willard Clark as his accomplices in one of these crimes. Tennart, according to Caine, remarked that he had dropped a .22 caliber pistol while scaling a fence during the burglary. A deputy from the parish involved recovered the pistol, and its serial number matched that of a revolver stolen from a store in Donaldsonville. Caine accused Wilson of having participated in the Donaldsonville offense and of having committed another burglary in East Baton Rouge Parish. Acting on Caine’s information, the officers recovered tires which had been taken in two burglaries, one to which Caine had confessed and another that Caine accused Wilson of committing. Caine’s information also led the officers to property that had been taken in the East Baton Rouge Parish burglary which he attributed to Wilson.

In the crucial portion of the affidavit Caine said he saw Wilson sell a pistol and an IBM electric typewriter to the defendant, Brawley, on separate occasions at Brawley’s home and business place. Caine further related that Wilson claimed he sold Brawley some tools, which were concealed at either Brawley’s house or business establishment, and that all the items he sold Brawley had been stolen. The officers were informed by the Donaldsonville police that an IBM electric typewriter and some tools were among the property taken in the burglary of the store there.

The disclosure of an informant’s identity does not assure the truthfulness of his information, but it aids in evaluating his credibility. The fact that Caine correctly directed the officers to merchandise which had been stolen in three different burglaries tended to vouch for his credibility. So did his accurate information about the pistol dropped by Tennart. Caine’s observations of the sales of the typewriter and pistol from Wilson to Brawley were sufficient underlying circumstances from which the magistrate could find it likely that the transactions occurred and that the items were in Brawley’s house or place of business.

Defendant argues, however, that the affidavit did not provide a sufficient basis for a finding that the pistol and typewriter had been stolen. He contends that because the affidavit contained no underlying circumstances from which the magistrate could conclude that Wilson was credible or his information reliable, Wilson’s statement that the property sold to Brawley was stolen cannot be believed. We agree that there was no basis for concluding that Wilson was a credible person. However, we find that the affidavit contains sufficient underlying circumstances to support a finding that Wilson’s statement was reliable.

According to information worthy of belief in the affidavit Wilson had recently participated in at least one burglary. Also, Caine stated Wilson committed other burglaries and successfully guided authorities to property stolen in these crimes. One of the items which Caine observed Wilson sell to Brawley, the IBM electric typewriter, was similar to an item taken in a burglary reportedly committed by Wilson. A common sense reading of the affidavit leads one to the conclusion that Caine and Wilson were partners in at least one, and probably other, burglaries and, through either confidences or personal observation, each was probably familiar with the other’s activities. Under all of these circumstances we conclude that Wilson’s statement to Caine that the goods sold Brawley were stolen, was probably reliable.

Alternatively, defendant asserts in this Court for the first time that the probable cause set forth in the affidavit had become stale before issuance of the search warrant. The sales to Brawley occurred in late February or early March of 1976, and the warrant was issued on April 12, 1976. Certainly, a warrant should not be issued if the support for it has become so attenuated with the passage of time as to be non-existent. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); State v. Boudreaux, 304 So.2d 343 (La.1974); See, Mascolo, The Staleness of Probable Cause in Affidavits for Search Warrants: Resolving the Issue of Timeliness, 43 Conn.B.J. 189 (1969). Nevertheless, the present affidavit did not indicate a likelihood that the defendant would have disposed of the items sold to him before the warrant was applied for and issued. The items were of a kind defendant might be inclined to keep indefinitely for personal use. We find the information in the affidavit sufficiently current to justify the conclusion that the stolen goods probably remained in defendant’s possession despite the passage of time.

In view of the foregoing, we reverse and set aside the ruling of the district judge granting defendant’s motion to suppress, and remand the case for further proceedings consistent with the views herein expressed.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Walter BOOTH, Jr.
    No. 59250.
    Supreme Court of Louisiana.
    June 20, 1977.

      J. Daniel Rivette, 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., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Walter Booth, Jr., a convicted armed robber, with carrying a concealed firearm, a violation of LSA-R.S. 14:95.1. The court found the defendant guilty and sentenced him to three years imprisonment and fined him $1,000, or six months in Parish Prison in default thereof.

The defendant appeals. He relies upon one assignment of error for reversal of his conviction and sentence. As defense counsel did not brief or argue two assignments of error, we consider them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

The police stopped the defendant for driving at night without headlights. As the defendant exited his car, he drew a pistol from his waistband and aimed it at one of the officers. After a struggle, the police seized the pistol and arrested him.

In a motion to quash and a motion in arrest of judgment, the defendant alleges that the penalty provision under which the court sentenced and fined him, LSA-R.S. 14:95.1 B, is impermissibly vague, rendering the entire statute under which the State charged him, LSA-R.S. 14:95.1, unconstitutional. He argues that its grammatical imperfections, i. e., the absence of a proper subject and ancillary verb for the last clause, prevent the statute from giving sufficient notice of who is fined and whether the fine is mandatory, optional, or alternative to a jail sentence.

LSA-R.S. 14:95.1 B originated as follows:

“Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without benefit of parole, probation, or suspension of sentence, and be fined not less than one thousand dollars nor more than five thousand dollars.” [Emphasis supplied.]

The Senate amended the bill to end the sentence after the phrase “ten years” and inserted an additional clause at the beginning of the second sentence. The final version, incorporating these amendments, reads:

“Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years. If such conviction is for the crime of carrying a concealed weapon, such sentence shall be without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.” [Emphasis supplied.]

A statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his conduct is criminal. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Smith v. Goguen, 415 U.S. 566, 96 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); State v. Johns, La., 339 So.2d 801 (1976); State v. Felton, La., 339 So.2d 797 (1976); State v. Comeaux, La., 319 So.2d 897 (1975).

By its very terms, the void-for-vagueness doctrine focuses upon the certainty of the conduct proscribed, not the penalties for such conduct. As the two alleged ambiguities are in the penalty clause, this constitutional doctrine is inapplicable.

The defendant’s argument that the statute is invalid because it does not give him adequate notice if he is to receive a fine in addition to a jail term is devoid of merit.

A defendant is entitled to know in advance only the range of the applicable sentence. Many statutes place the decision of whether to impose a fine in addition, or alternative, to a sentence in the discretion of the judge. See LSA-R.S. 14:38 (simple assault); LSA-R.S. 14:45 (simple kidnapping); LSA-R.S. 14:46 (false imprisonment); LSA-R.S. 14:47 (defamation). The Legislature vests the power to determine the extent of the sentence after conviction in the trial judge. This procedure does not violate the defendant’s constitutional rights.

For the reasons set forth below, we find that LSA-R.S. 14:95.1 B is subject to a reasonable construction which furthers the legislative intent. Therefore, the statute must stand.

The defendant contends that LSA-R.S. 14:95.1 B actually imposes a fine on the sentence or the sentencing judge.

LSA-R.S. 14:3 provides:

“The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

See State v. Newton, La., 328 So.2d 110 (1976); State v. Truby, 211 La. 178, 29 So.2d 758 (1947). See also 73 Am.Jur.2d Statutes, § 296, p. 454.

A statute should be interpreted so as to avoid absurd consequences. Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970); State v. Seals, 255 La. 1005, 233 So.2d 914 (1970); Smith v. Flournoy, 238 La. 432, 115 So.2d 809 (1959).

Although the defense’s interpretation is grammatically correct it produces an absurd result. As the bill was introduced, “[w]hoever is found guilty” was the subject of the verb “be fined.” When the Legislature amended the bill and inserted a new subject clause before “be fined,” they failed to complete the necessary grammatical adjustments to make the word “defendant” the subject of “be fined.” Nonetheless, despite grammatical deviation, we construe LSA-R.S. 14:95.1 B as imposing a fine upon a defendant convicted.

The defendant further argues that LSA-R.S. 14:95.1 B is ambiguous as to whether the imposition of the fine is mandatory, permissive, or alternative to the jail sentence.

A court may ascertain the meaning of a word or phrase in a statute from the meaning of other words or phrases with which it is associated. State v. Hertzog, 241 La. 783, 131 So.2d 788 (1961); State v. Arkansas Louisiana Gas Co., 227 La. 179, 78 So.2d 825 (1955); Board of Trustees of Fin. Auth. v. All Taxpayers, La.App., 336 So.2d 306 (1976); B.W.S. Corp. v. Evangeline Parish Police Jury, La.App., 293 So.2d 233 (1974). In construing statutes, courts must interpret an apparent ambiguity or inconsistency so as to give effect to all of the provisions of that statute. We assume that the Legislature intended every word in a statute to add meaning. State v. Cazes, 262 La. 202, 263 So.2d 8 (1972); State v. Dozier, 258 La. 323, 246 So.2d 187 (1971); State v. Sage, 162 La. 630, 110 So. 884 (1926).

The verb in the first clause of the disputed sentence is “shall be.” The Legislature omitted the “shall” for the second verb and used only “be.” In our opinion, the verb phrase “be fined” refers directly to the proceeding verb phrase “shall be.” With reference to “shall,” the imposition of the fine is mandatory. LSA-C.Cr.P. Art. 5. Moreover, standing alone, we consider the term “be fined” to be mandatory, since it is unqualified.

If we were to construe LSA-R.S. 14:95.1 B as providing for a permissive or optional fine, such a construction would render nugatory the requirement that the fine be at least $1,000. If the trial judge had the discretion as to whether or not to fine a defendant, there would be no reason to place a minimum limit on the fine.

Further, we conclude that the fine is an additional, not alternative, penalty to the jail sentence. The word “and” joins the provisions of the statute relating to the jail sentence and the fine. The word “and” indicates that the proceeding and subsequent phrases are in the conjunctive. LSA-C.Cr.P. Art. 6.

In conclusion, we interpret LSA-R.S. 14:95.1 B as follows:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years. If such conviction is for the crime of carrying a concealed weapon, such sentence shall be without the benefit of probation, parole, or suspension of sentence, and such defendant shall be fined not less than one thousand dollars nor more than five thousand dollars.

We hold that LSA-R.S. 14:95.1 B imposes a mandatory fine upon a defendant convicted of carrying a concealed weapon who has been previously convicted of one of the enumerated felonies of LSA-R.S. 14:95.1 A and that the statute is constitutional.

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

DIXON, J., concurs.

      . The bill was House Bill No. 324. Upon passage it became Act No. 492 of the 1975 Regular Session.


author: DIXON, J.,

text:
    STATE of Louisiana v. John B. HAGERTY.
    No. 60127.
    Supreme Court of Louisiana.
    June 28, 1977.
   In re: John B. Hagerty applying for writs of certiorari, mandamus and prohibition.

Writ denied. Showing made does not warrant the exercise of supervisory relief. Adequate remedy by review in the event of conviction.

DIXON, J.,

concurs in the denial, the representations in the application indicate that the prescription plea has merit. However, because the application is incomplete, this court sought and accepted the response of the prosecution that the record shows a motion for continuance, filed by defendant, effected a suspension of prescription.


text:
    STATE of Louisiana v. James NORMAN.
    No. 59992.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: State of Louisiana through the District Attorney, Ossie Brown applying for supervisory writs.

Writ denied. We are unable to say that the trial court erred in its ruling.

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


author: TATE, J.,

text:
    STATE of Louisiana v. Louis J. NELSON and Edwine G. Guillot.
    No. 59977.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Louis J. Nelson and. Edwine G. Guillot, applying for supervisory writs and writ of review.

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

TATE, J.,

concurs in the result. Under our practice, we do not grant supervisory relief to interlocutory rulings unless they are obviously erroneous, since such contentions may properly be reviewed upon an appeal in the event of conviction. Both issues presented by this application raise close issues. (1) If the affidavit is interpreted (as it possibly may be) that the informant purchased heroin from 2323 No. Villere St. (as well as the other addresses) it supports (in my opinion) a search warrant for that address. (2) While the restriction of the scope of the hearing is not obviously erroneous, so as to justify supervisory relief, I think error will be committed if the relator is not permitted to examine the affiant as to whether, the informant told him that he has purchased heroin from this address. The occasion for possible reversal may be avoided if inquiry is permitted as to the issue.


text:
    STATE of Louisiana v. Kenneth JOHNSON.
    No. 59942.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Application denied. No error in the ruling of the trial judge.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., are of the opinion that a writ should be granted.


text:
    STATE of Louisiana v. Michael MANSO, a/k/a Patrick Fusilo, Michael Vierthaler, Edward Kenny, a/k/a Dale Roberts, Steve Hill, and Jeffery Roberts.
    No. 60152.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Michael Manso, etc. applying for writs of certiorari, mandamus and prohibition.

Writ granted. The trial court is ordered to resume the bail reduction hearing on or before July 5,1977 or to reduce the amount of the bond to $10,000 as to each defendant.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent from the granting of the writ.


text:
    Laura Beatrice Waddell HARVEY v. Melba L. HARVEY et al.
    No. 59995.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Melba L. Harvey applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 113, First Circuit, Parish of West Feliciana.

Writ denied. The result is correct. Denial herein is without prejudice to applicant to bring boundary action.

DIXON, J.,

concurring in the denial, is of the opinion that defendant, plaintiff in re-convention, was entitled to cumulate petito-ry action with boundary action, and, to the extent that the court of appeal ruled otherwise, it was in error. Defendant, plaintiff in reconvention, is entitled to locate the land on the ground, and our action permits him to do that, if there remains a dispute.


text:
    Elton Charles DUPRE v. STERLING PLATE GLASS & PAINT CO., INC., et al.
    No. 60004.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Sterling Plate Glass & Paint Co., Inc., applying for Certiorari, or writ of review, to the Court of Appeal, 344 So.2d 1060, First Circuit, Parish of East Baton Rouge.

Application denied; the judgment of the court of appeal is correct.

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


text:
    Elvin L. CAMPBELL et ux. v. Barbara WOMACK (Koen) et al.
    No. 60009.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Elvin L. Campbell & Frances E. Campbell applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 96, First Circuit, Parish of St. Mary.

Writ denied. There is no error of law in the judgment of the court of appeal.

DIXON, J., dissents from denial.

DENNIS, J., would grant the writ.


text:
    Chris W. DOBARD and Mercedes S. Dobard, husband and wife v. Thomas L. BECNEL and Allstate Insurance Co.
    No. 60017.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Chris W. Dobard and Mercedes S. Dobard applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 147, First Circuit, Parish of Lafourche.

Application denied. On the facts found by the court of appeal, there is no error of law in its judgment.

DENNIS, J., would grant the writ to review the decision denying an additional award for loss of earnings.


text:
    Murray J. GROS v. TOWN OF PATTERSON.
    No. 60019.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Murray J. Gros applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 134, First Circuit, Parish of St. Mary.

Writ denied. There is no error of law in the judgment complained of.

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

CALOGERO, J., dissents from denial.

DENNIS, J., would grant the writ.


text:
    William D. SHOWS v. Alma M. SHOWS.
    No. 60022.
    Supreme Court of Louisiana.
    July 1, 1977.
   In Re: William D. Shows applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 975, Second Circuit, Parish of Jackson.

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

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


text:
    STATE ex rel. William Robert AUSTIN v. Ossie BROWN, District Attorney.
    No. 59969.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: William Robert Austin applying for writ of mandamus.

Writ granted. Trial ordered on or before Sept. 1, 1977. If trial is not held in this time, detainer shall be released.

SUMMERS, J., I would leave the time of trial to the District Attorney.


text:
    Robert SANDERS, John Cantry, Lawrence Hudson, Michael Conner and Joshua Berry v. Lev HALL, Jr. and N. O. Public Service, Inc.
    No. 60057.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Lev Hall, Jr. and N. O. Public Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 590, Fourth Circuit, Parish of Orleans.

Writ granted. The case is remanded to the court of appeal for reconsideration in the light of art. 5, Section 10(B), La.Const. and article 1934(3) of the Louisiana Civil Code.

SUMMERS, J., would grant this writ, docket the case and hear arguments and require briefs.


text:
    STATE of Louisiana ex rel. Willie EDMONDSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60062.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Willie Edmondson applying for writs of habeas corpus, certiorari, prohibition, mandamus and other writs.

Granted in part. Application transferred to district court to act upon relator’s new contentions as to ineffective assistance of counsel at time of trial.

SANDERS, C. J., and SUMMERS, J., are of the opinion that the writ should be denied.


text:
    FIREMEN’S INSURANCE COMPANY v. G. AND M. CONSTRUCTION CO. et al.
    No. 60018.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: G. & M. Construction Co. and Zurich Insurance Co., applying for certiora-ri, or writ of review, to the Court of Appeal, 345 So.2d 208, Third Circuit, Parish of St. Landry.

Writ refused. The basic question is factual. On the facts found by the lower courts, there is no error of law in its judgment.

DIXON, J., dissents from the refusal, believing the opinion of the court of appeal is probably incorrect.

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

MARCUS, J., is of the opinion that the writ should be granted.


text:
    STATE of Louisiana v. Diehlmann C. BERNHARDT.
    No. 60023.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Diehlmann C. Bernhardt applying for writs of certiorari and review.

Writ denied. Assignments of error are without merit.

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


text:
    Clarence Leon RICHEY v. TENNECO, INC.
    No. 60027.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Clarence Leon Richey applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 260, Third Circuit, Parish of Acadia.

Writ denied. No error of law under the pleadings.

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

TATE, J.,

assigns as additional concurring reasons that the pleadings show landowner was seeking damages based on the pre-compromise conduct. Our denial was not intended to approve any construction of the compromise as barring the landowner from recovery of damages claimed by the landowner caused by post-compromise conduct.


text:
    Jane Porter MOON v. Theodore L. MOON.
    No. 60028.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Theodore L. Moon applying for writ of certiorari, or writ of review, to the Court of Appeal, 345 So.2d 168, Third Circuit, Parish of Calcasieu.

Writ denied. The result is correct.

DIXON, J., concurs in the denial, see concurring opinion at 345 So.2d 176.


text:
    Jane Porter MOON v. Theodore L. MOON.
    No. 60037.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Jane Porter Moon applying for writ of certiorari, or review, to the Court of Appeal, 345 So.2d 168, Third Circuit, Parish of Calcasieu.

Writ denied. The result is correct.

DIXON, J., concurs in the denial. See concurring opinion at 345 So.2d 176.


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

text:
    CITY OF LAFAYETTE v. Clinton B. GRIFFITH.
    No. 60032.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Clinton B. Griffith, applying for writs of certiorari, prohibition and mandamus.

Writ denied. The application is without merit.

TATE, J.,

concurs. The joinder for trial of two separate charges with consent of the accused may amount to a waive of the accused’s right to a jury trial, where he is thereby exposed to a total sentence exceeding six months. La.Constitution Art. 1, Sec. 17. However, when in fact the accused did not receive a sentence which exceeded six months, it is not necessary to pass upon this issue, in my opinion.

DIXON, J.,

concurs in the denial. It is only if one Bill exposes the defendant to more than six months’ imprisonment that defendant is entitled to a jury trial.


text:
    EDELMAN SYSTEMS, INC., et al. v. CAPITOL GMC, INC., et al.
    No. 60045.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Edelman Systems, Inc., et al. applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 99, First Circuit, Parish of E. Baton Rouge.

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

DIXON, J.,

is of the opinion the writ should be granted. At most, a judgment of non-suit might have been justified. In my opinion, however, the opinion of the trial judge is correct.


text:
    STATE of Louisiana v. Jimmy WATTREE.
    No. 60046.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: State of Louisiana through the District Attorney, Henry N. Brown, Jr. applying for writs of certiorari and review.

Application denied; the reason the search is required does not appear from the affidavit

SANDERS, C. J., is of the opinion that a writ should be granted.

SUMMERS, J., dissents from the denial of writs.


text:
    STATE of Louisiana v. John RIVES.
    No. 60056.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: John Rives, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Applicant has an adequate remedy by review in the event of conviction. •

SUMMERS, J., is of the opinion the writ should be denied on the merits.


text:
    J. George NOMEY, Max Head and S. & H. General Store v. JACKSON PARISH POLICE JURY and Honorable Lyman "Red” Watkins, Sheriff, Jackson Parish.
    No. 60086.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: J. George Nomey, Max Head and S. & H. General Store, applying for certio-rari, or writ of review, to the Court of Appeal, 345 So.2d 993, Second Circuit. Parish of Jackson.

Writ denied. Relator’s complaints have been previously found to be without merit by this court. See Nomey et al. v. Jackson Parish Police Jury et al., La., 345 So.2d 1191, denied May 25, 1977.

DENNIS, J., is of the view the application presents sufficient legal question to require consideration of oral arguments and briefs by all parties.


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

text:
    In the Matter of the Succession of Ted F. DUNHAM, Sr.
    No. 60096.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Katharine Oldham Dunham applying for supervisory writs.

Writ denied. No abuse of discretion by trial judge. We express no opinion as to the liability for the payment of the cost of the inventory.

SANDERS, C. J.,

has serious doubts concerning the propriety of the inventory order, but because of the delay involved in appellate review concurs in the denial.

SUMMERS, J.,

is of the opinion the writ should be granted. Respondent’s right is to traverse the descriptive list, not to obtain authorization for an ádditional inventory.


author: DENNIS, J.,

text:
    STATE of Louisiana v. James PERKINS.
    No. 60120.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. Insufficient showing of error to justify the exercise of our supervisory jurisdiction.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., are of the opinion that a writ should be granted.

DENNIS, J.,

concurs in denial of the application. In the absence of a transcript of all the pertinent testimony, we cannot say the trial judge committed error in sustaining the motion to suppress.


text:
    Catherine BENJAMIN and Fred Benjamin v. NATIONAL SUPER MARKETS, INC.
    No. 59872.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Catherine Benjamin and Fred Benjamin applying for writ of certiorari or review. 346 So.2d 1110.

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 Judges of the Court of Appeal, Fourth Circuit, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 24th day of June, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    CITY OF NEW ORLEANS v. Shirley DIXON.
    No. 60094.
    Supreme Court of Louisiana.
    June 20, 1977.
   In re: Shirley Dixon, applying for writs of certiorari, prohibition, mandamus and habeas corpus and for stay order.

Writ granted: The relator is ordered discharged from confinement for the contempt adjudication. See La.R.S. 13:2500.


text:
    STATE of Louisiana v. Leonard J. FAGOT.
    No. 60093.
    Supreme Court of Louisiana.
    June 21, 1977.
   In re: Leonard J. Fagot applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. On the basis of this application, there was no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Charles A. HEALY v. Hon. Matthew S. BRANIFF, Parish of Orleans, State of Louisiana.
    No. 59774.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Charles A. Healy applying for writs of mandamus, prohibition and other remedial writs.

Writ granted. The trial judge is ordered to rule on petitioner’s motion, copy of which is transmitted herewith, and to allow petitioner to file supplemental assignment of errors.


text:
    Carl L. MITCHELL v. Lannie SIGREST et al.
    No. 60044.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Carl L. Mitchell, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington.

Not considered. Writ not timely filed.


text:
    STATE of Louisiana v. Billie G. MITCH.
    No. 60095.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: State of La. through the District Attorney, Norval J. Rhodes, applying for writs of certiorari, prohibition, mandamus, and for a stay order.

Not considered; not timely filed.


text:
    STATE ex rel. Tommy BARBER v. Gordon E. CAUSEY, Judge, 21st JDC.
    No. 60066.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Tommy Barber applying for writ of mandamus.

Writ denied: The petitioner’s writ was denied by the trial court on April 20, 1977. This mandamus application is moot.


text:
    STATE of Louisiana v. James HOLZHAUER.
    No. 60121.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: James Holzhauer, applying for writs of review and a stay order.

Writ denied. We find no error in the ruling of the trial court.


text:
    CITY OF BOSSIER CITY v. Estella M. MEYER.
    No. 60047.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Estella M. Meyer applying for writs of certiorari, prohibition and mandamus.

Not considered. Not timely filed. Rules of the Supreme Court, Rule 10, Sec. 5(b).


text:
    STATE of Louisiana ex rel. Robert HARRISON v. Matthew S. BRANIFF, Judge, et al.
    No. 59933.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Robert Harrison, applying for remedial writs.

Writ granted. Trial judge should appoint an attorney to represent defendant. Thereafter, a hearing should be held to determine whether defendant desires to knowingly and intelligently waive counsel and elect to represent himself. Considering defendant’s motion as a motion for recusal of the trial judge, trial judge should then proceed in accordance with La. Code Crim. Procedure, Art. 671 et seq.


text:
    STATE of Louisiana ex rel. Charles E. JACKSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59877.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Charles E. Jackson applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. Transcript of pleadings below evidence that petitioner’s allegations are not correct. The application is without merit.


text:
    Woodrow BROWN v. NATIONAL OLD LINE INSURANCE COMPANY.
    No. 59980.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Woodrow Brown applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 345 So.2d 1023.

Writ denied. There is no error of law in the judgment of the Court of Appeal.


text:
    Laverne PEARSON v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, and Shell Chemical, Inc.
    No. 60014.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Travelers Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 345 So.2d 123.

Writ refused. No error of law.


text:
    L. T. CHAUVIN v. NELKIN INSURANCE AGENCY, INC. and Appalachian Insurance Co.
    No. 60013.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Nelkin Insurance Agency Inc. and Appalachian Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Mary. 345 So.2d 132.

Application denied; no error in the court of appeal judgment.


text:
    FOUNDATION PLAN, INC. v. Mrs. Loretta BREAUX, wife of/and Welmon Breaux.
    No. 60012.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Mrs. Loretta Breaux, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 345 So.2d 955.

Writ denied. Under the facts found, no error of law.


text:
    Laverne PEARSON v. HARTFORD ACCIDENT AND INDEMNITY CO. and Shell Chemical, Inc.
    No. 60008.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Laverne Pearson applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 345 So.2d 123.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    Clement ROMERO et al. v. Bernice Broussard TRAHAN.
    No. 60007.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Clement Romero, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia. 345 So.2d 225.

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


text:
    SKYE REALTY COMPANY v. STATE of Louisiana THROUGH DEPARTMENT OF HIGHWAYS.
    No. 60006.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Skye Realty Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides.

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


text:
    Walter HUGHES, Jr. v. COLONIAL LIFE AND ACCIDENT.
    No. 60002.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Walter Hughes, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 345 So.2d 239.

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


text:
    Alton HEBERT, Jr. v. Wilbert MORALES et al.
    No. 60000.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Wilbert Morales, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption. 345 So.2d 139.

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


text:
    STATE ex rel. Clifton JONES v. Hon. Charles R. WARD, Judge, Crim. Dist. Court, Section "A", Parish of Orleans.
    No. 59928.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Clifton Jones, applying for writ of mandamus.

Writ denied. The matter is moot.


text:
    George M. PAULAT v. Jasper PIRELLO.
    No. 60003.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Jasper Pirello applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 345 So.2d 527.

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:
    Linda S. COOK et al. v. CENTRAL MUTUAL INSURANCE CO.
    No. 60015.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Linda S. Cook, et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 345 So.2d 1013.

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


text:
    Donald G. LAMBERT, Sharon W. Lambert, Lambert Aviation, Inc., and Lambert Construction Co., Inc. v. Alwynn CRONVICH, Sheriff for the Parish of Jefferson, William Justice, Clerk of Court and Ex-Officio Recorder of Mortgages for the Parish of Jefferson, the Bank of New Orleans and Trust Co., Maryland Casualty Co. and Hibernia National Bank in New Orleans.
    No. 60137.
    Supreme Court of Louisiana.
    June 30, 1977.
   In re: Maryland Casualty Co. applying for supervisory and remedial writs.

Writ denied. There is no abuse of discretion in the trial court’s ruling.


text:
    Alga Benjamin CROWE et al. v. Dr. Richard R. HOWARD et al.
    No. 60153.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Alga Benjamin Crowe, et al. applying for writs of certiorari, prohibition, mandamus and a stay order.

Writ denied. Since the Court of Appeal granted supervisory relief the application is moot.


text:
    Roy CASE v. ARROW TRUCKING COMPANY et al. Dianna Cheramie ESTE et al. v. ARROW TRUCKING CO. et al.
    No. 60071.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Roy Case applying for writs of mandamus, certiorari or review. 345 So.2d 1250.

Not considered. The application is not timely. The final extension was granted by the trial judge after the original delay for applying to this court had already expired.


text:
    Alga Benjamin CROWE et al. v. Dr. Richard R. HOWARD et al.
    No. 60154.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Dr. Richard R. Howard, et al. applying for supervisory, writs.

Writ denied. The result reached by the Court of Appeal in its order is correct.


text:
    STATE of Louisiana v. Amos FREEMAN.
    No. 60126.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Amos Freeman applying for writ of certiorari.

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


text:
    STATE ex rel. JEFFERSON PARISH SCHOOL BOARD v. CITY PARK IMPROVEMENT ASSOCIATION, Orleans Parish School Board, Registrar, State Land Office, the City of New Orleans and the State of Louisiana.
    No. 60069.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Jefferson Parish School Board applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 345 So.2d 597.

Writ denied. Under the assignments of error, the judgment of Court of Appeal is correct.


text:
    MUELLER CLIMATROL CORPORATION v. JAMES J. CULOTTA, INC.
    No. 60068.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: James J. Culotta, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Application denied; no error of law in the court of appeal judgment.


text:
    STATE of Louisiana ex rel. Norman CLARK v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 60065.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Norman Clark applying for writ of habeas corpus.

Writ denied. The showing made does not warrant a finding that the trial judge’s ruling was in error.


text:
    Thomas Clinton DAIGLE, Theodore O. Oster, Paul R. Pasquier and Jefferson Parish Teachers’ Assn. v. JEFFERSON PARISH SCHOOL BOARD, Lawrence J. Sisung, Jr., Joseph T. Toomey, Sherman J. Gaspard, James E. Lawson, Jr., Henry E. Williams, Gilda Haynes, Raymond "Rick", Speeg, Aaron F. Broussard, Harold Keller and Jefferson Federation of Teachers, Local 1559, AFT, AFL-CIO.
    No. 60064.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Thomas Clinton Daigle, Theodore O. Oster, Paul R. Pasquier and Jefferson Parish Teachers’ Association applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 345 So.2d 583.

Writ refused. No error of law in judgment.


text:
    COMMERCIAL UNION INSURANCE v. JAMES J. CULOTTA, INC. and James J. Culotta.
    No. 60063.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: James J. Culotta and James J. Culotta, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 345 So.2d 561.

Writ denied. On the facts found, no error of law.


text:
    STATE of Louisiana v. Joseph RICHEY.
    No. 60058.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Joseph Richey applying for remedial writs.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Gordon A. SKYEAGLE.
    No. 60036.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Gordon A. Skyeagle applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 345 So.2d 189.

Writ denied. There is no merit in application.


text:
    Carl FUSILIER and James Rudy Fusilier v. Leon Todd RUSSELL et al. James Rudy FUSILIER v. Elin PITRE et al. James Rudy FUSILIER v. INTERSTATE SURPLUS UNDERWRITERS, INC., et al.
    No. 60043.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: James Rudy Fuselier applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 345 So.2d 548; 345 So.2d 547; 345 So.2d 543.

Writ denied. On the facts found, no error of law in the judgment of the court of appeal.


text:
    PLACID OIL CO. v. Watson TAYLOR et al.
    No. 60035.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: James B. Johnson and Nancy Taylor Johnson, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 345 So.2d 254.

Writ denied. On the facts found, no error of law.


text:
    Larry Phil HARRIS v. Darbes J. LANDRY, Jr.
    No. 60033.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Darbes J. Landry, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 345 So.2d 242.

Writ denied. On the facts found by the courts below, the result is correct.


text:
    Margaret Stafford CHAMPAGNE v. Louis V. CHAMPAGNE.
    No. 60031.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Louis V. Champagne applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoch-es. 345 So.2d 229.

Writ denied. No abuse of discretion shown.


text:
    Dr. G. P. MUSSO, Jr. v. ST. MARY PARISH HOSPITAL SERVICE DISTRICT NO. 1 et al.
    No. 60029.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Dr. G. P. Musso, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Mary. 345 So.2d 129.

Application denied: on the facts found by the Court of Appeal, there is no error in its judgment.


text:
    Elsie Woodard TOLBERT et al. v. Firal RYDER et al. J. E. FOWLER PETROLEUM PRODUCTS, INC. v. GREAT AMERICAN INSURANCE COMPANY et al.
    No. 60025.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Firal Ryder and Continental Casualty Company, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    ROBERTS APARTMENT AGENCY, INC. and Bobby L. Forrest v. J. L. MALLETT, W. R. Copeland and C. R. Tyler.
    No. 60024.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: J. L. Mallett, W. R. Copeland and C. R. Tyler applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 345 So.2d 153.

Writ denied. On the facts found, there is no error of law.


text:
    ADD CHEMICAL COMPANY v. GULF MARINE FABRICATORS, INC.
    No. 60020.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Add Chemical Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 345 So.2d 216.

Writ denied: Under the facts found by the Court of Appeal, we find no error of law.


text:
    STATE of Louisiana ex rel. Cleveland WILLIAMS and Michael Herbert v. The HONORABLE JUDGE PRESIDING CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 59882.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Cleveland Williams and Michael Herbert applying for writ of mandamus.

Writ denied: We find this mandamus application to be moot, based upon an oral return from the district court that it has acted upon the habeas petition. The district court is instructed to send the applicants a copy of its ruling, if it has not done so already.


text:
    STATE of Louisiana ex rel. Dave NELSON v. CRIMINAL DISTRICT COURT IN AND FOR the PARISH OF ORLEANS SEC. "G", New Orleans, La.
    No. 58145.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Dave Nelson applying for writs of mandamus.

Writ of mandamus filed here on March 2, 1977 is denied because it is now moot. The trial judge had ruled on petitioner’s writ of habeas corpus on June 22, 1977.


text:
    STATE of Louisiana ex rel. Ervin Joseph GUIDROZ v. Sheriff EDWARDS and Judicial Officials of Tangipahoa Parish Criminal Courts, Amite, La.
    No. 60061.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Ervin Joseph Guidroz applying for writ of mandamus.

Granted in part. Application transferred to district court for ruling on relator’s complaints.


text:
    STATE of Louisiana v. Joe A. TERRELL.
    No. 60040.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: State of La., through the District Attorney, Ossie Brown, applying for supervisory writs.

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 Elmo E. Lear, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 22nd day of July, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    Maureen MORRIS v. Joseph GERACE, Administrator of the Department of Employment Security and Morton Salt Company.
    No. 60021.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Maureen Morris applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia, 345 So.2d 538.

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:
    STATE of Louisiana v. Shirley SMITH and Benjamin deManuel.
    No. 59985.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Shirley Smith and Benjamin de-Manuel, applying for writs of certiorari.

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 Matthew S. Braniff, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 22nd day of July, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


author:
LEMMON, Judge. REDMANN, Judge,
      REDMANN, Judge,

text:
    JOSEPH A. NEYREY, GENERAL CONTRACTOR, INC. v. LOUISIANA POWER & LIGHT COMPANY.
    No. 8008.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied June 30, 1977.
    August J. La Nasa, New Orleans, for plaintiff-appellee.
    Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart, New Orleans, and J. Wayne Anderson, Metairie, for defendant-appellant.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   LEMMON, Judge.

Defendant has appealed from a judgment which awarded Joseph Neyrey, a building contractor, the damages he incurred when defendant’s refusal to move a utility pole and transmission line located on his property caused a delay in performing a construction contract.

In 1967 Neyrey purchased some acreage on Lake Pontchartrain and eventually subdivided the property into lots, including Lot 15 which is involved in this litigation. A couple of years later he discovered a utility pole had been placed on Lot 15 and a transmission line was strung across the lot.

In December, 1972 Neyrey contracted to construct a residence on Lot 15. He requested that defendant move the structures, since the house could not be constructed with the transmission line in that location. Defendant agreed to do so, but only on the condition that Neyrey grant a permit to place the pole on another specified location on the lot. Neyrey declined this offer, believing that even with the pole in the proposed relocation the transmission line would obstruct the view of the lake.

Further negotiations were fruitless, and the line remained in the same location. Because building costs were rising rapidly, and because the purchaser’s financing commitment was for a limited time, Neyrey commenced construction in May, 1973 in order to bring the matter to a head. By early June the slab had been poured and the lower floor had been framed. Since further construction presented danger of interruption of electric service and of possible injury to workers, defendant filed a suit for injunction and obtained a temporary restraining order on June 12, 1973, halting construction pending a hearing. After trial of the rule for injunction the court on June 26, 1973, finding no factual basis for application of the doctrine of unopposed use and occupancy, dissolved the restraining order and ordered defendant to move its pole onto a utility servitude on the rear of the lot. Neither party appealed from that judgment, and Neyrey proceeded to complete the house after the pole was moved on July 7, 1973.

On June 13,1974 Neyrey filed the present suit for damages, a claim he had earlier asserted in the injunction suit. At trial Neyrey limited his claim to the amount of price increase for labor and materials between January and July 7, 1973, the period of the delay caused by defendant’s failure to move the pole and line.

The issue as to whether or not defendant’s pole and transmission line were lawfully on Neyrey’s property was judicially decided in the injunction suit. In the present suit, therefore, defendant must be regarded as a trespasser at all times.

Defendant’s first argument is based on its exception of prescription, which was first filed in this court. However, a trespass committed by illegally erecting a structure on immovable property continues as long as the offending object remains on the premises, and the trespass is terminated only by the removal of the object wrongfully placed there. 1 Harper & James, The Law of Torts § 1.7 (1974); Prosser, The Law of Torts § 13, p. 74-75 (4th ed. 1971). The suit filed within one year of the pole’s removal was therefore timely, under the circumstances of this case, as to all damages caused by the presence of the pole and transmission line during the entire time that the continuing trespass existed and defendant refused to move the structures.

Furthermore, the demand for damages asserted in the injunction suit served as an interruption of prescription.

On the merits Neyrey testified that he was ready, willing and able to begin construction when the contract was signed in December, 1972, but that the house could not be constructed with the wires as then located. Since the trial judge apparently accepted this testimony, the key issue on damages is whether defendant’s refusal to remove the pole was the principal cause of the construction delays. As to this issue, defendant contends that Neyrey could have begun construction earlier, even with the structures in that location.

Neyrey entered into the construction contract in the reasonable belief that defendant would move the pole and line immediately upon request. When defendant conditionally refused, Neyrey could not reasonably remove the pole and line himself, and his attempt to negotiate removal amicably was also reasonable. Since defendant believed at the time the pole and line were lawfully located, Neyrey decided that, instead of filing suit to compel removal and possibly engaging in extended litigation, he would commence construction to the point necessary to promote action. He obtained a building permit on March 15 and began actual construction within a few weeks.

Perhaps other courses of action would have been more prudent. And perhaps Neyrey did cause some minor time delays. But we cannot say the trial judge erred in concluding Neyrey's action or lack of action did not contribute substantially to the construction delays, but that the delays were caused principally by defendant’s refusal without lawful basis to remove the pole and line. Neyrey is therefore entitled to any damages which he proved resulted from the delays.

Neyrey testified that an unprecedented cost increase occurred in the construction industry in the spring of 1973; that he had set the contract price based on verbal quotations of suppliers and subcontractors; and that while the labor and materials cost him considerably more than he had originally anticipated, he collected only the amount of the original contract price from the purchaser.

The amount of the price increase between the date of the contract and the date of removal of the pole was not seriously challenged at trial (except for one item which was apparently disallowed by the trial judge), and the award is adequately supported by Neyrey’s testimony. The award of $550.00 in attorney’s fees demanded by Neyrey for services in connection with the dissolution of the restraining order is also supported by the record. See C.C.P. art. 3608.

The judgment is affirmed.

AFFIRMED.

REDMANN, J., concurs and assigns reasons.

REDMANN, Judge,

concurring.

The exception of prescription may be overruled on the theory that plaintiff interrupted prescription by asserting the same cause of action (the complained-of behavior of defendant; National Surety v. Standard Accident Ins. Co., 1965, 247 La. 905, 175 So.2d 263) by reconvention in defendant’s injunction suit. “All prescriptions” as to that cause of action were thereby interrupted, R.S. 9:5801.

REDMANN, Judge,

concurring in the denial of rehearing.

Plaintiff, in his answer as defendant in the injunction suit, had alleged that LP & L’s pole “is prohibiting [plaintiff’s] peaceful use and occupancy of [plaintiff’s] property”, and alleged “substantial, serious and continued damages” as a result. My characterization of plaintiff’s thus asserting damage as a “reconvention” was an overstatement, although I remain of the opinion that this judicial declaration by plaintiff served as prescription-interrupting notice.

      . At this point defendant, contending that the pole and line had been in that location for many years without objection, took the position that the structures were lawfully located on the property under the doctrine of unopposed use and occupancy. That doctrine was later repudiated in Lake, Inc. v. Louisiana Power & Light Co., 330 So.2d 914 (La.1976).

      . The transmission line in question ran parallel to the lakeshore and did not serve the subdivision. The transmission line which served the subdivision ran perpendicular to the lakeshore on a servitude in the rear of the subdivided lots facing Carthage Street, which also ran perpendicular to the lakeshore.

      .Defendant acted properly in obtaining a restraining order for the purpose of assuring continuation of service and protecting life and property. However, defendant’s apparent purpose in seeking an injunction was not to secure time to remove the pole and wires which were illegally on the property, but to assert defendant’s right to keep the pole in that location.

      . The majority’s alternate ratio appears doubtful. Cases like Craig v. Montelepre Realty Co., 1968, 252 La. 502, 211 So.2d 627, and D’Albora v. Tulane University, La.App. 4 Cir. 1973, 274 So.2d 825, writ denied, La., 278 So.2d 504 and 505, are not controlling because their defendants, unlike ours, were (1) doing what they had a legal right to do, such as demolition or pile-driving, (2) on their own land (although their lawful activity entailed the obligation to repair any damage it caused). To require that a suit be brought against a neighbor on the first day he starts careful but damaging pile-driving would be unreasonable because that neighbor has the right to drive piles carefully in order to build on his own land, and the pile-driving will therefore continue and probably cause more damage, so that new suits (or supplemental petitions, in today’s procedure) would be necessary. But our defendant was (1) doing what it had no legal right to do, (2) on plaintiff’s land rather than its own. A suit brought against our defendant on the first day it placed its pole and wires on plaintiff’s land could finally have settled the matter because defendant had no right to continue to do what it was doing, and therefore no further lawsuit (or supplemental petition) would have been necessary.