author: MARCUS, Justice.

text:
    STATE of Louisiana v. Robert Earl JACKSON.
    Nos. 62902, 62903.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    W. Charles Brown, Mansfield, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Robert Earl Jackson was charged by bill of information with the attempted armed robbery of W. J. Horton (La.R.S. 14:27; La.R.S. 14:64). After trial by jury, defendant was found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of a previous felony conviction pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender and sentenced him to serve thirty years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on ten assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others.

Defendant contends the trial judge erred in overruling his objections to the state’s introduction of evidence of another crime allegedly committed by defendant.

Prior to trial, the state gave written notice to defendant of its intention to introduce evidence of another crime committed by defendant to show system, knowledge or intent. At trial, the trial judge, over continuing defense objections, ruled such evidence admissible.

At trial, W. J. Horton, victim of the crime charged, testified that, while he was in his automobile at the M & M Liquor Store in Mansfield, Louisiana, he was approached by Eddie Roy Jackson and defendant who asked for a ride. Horton consented and they entered his car. After he had driven a short distance, defendant pointed a pistol at the back of Horton’s head, told him to pull over to the side of the road and hand over his wallet. Thereafter, he got out of the automobile and, as defendant reached inside his pocket for the wallet, a scuffle ensued between defendant and himself. Horton stated that he managed to break away from defendant and ran to a washateria where he telephoned the police. He positively identified defendant as the person who attempted to rob him.

Next, Whitfield Edwards, victim of a robbery allegedly committed by defendant and Eddie Roy Jackson a short time after the incident involving Horton, testified that, as he and his wife were in their automobile, they were approached by defendant and Eddie Roy Jackson who requested a ride. They consented and Eddie Roy Jackson and defendant got into the car. After driving a short distance, Eddie Roy Jackson pointed a pistol at Edwards and ordered him to stop the car. Edwards also noticed that defendant had a knife. After being ordered out of the vehicle, Edwards managed to break away and run off. Two shots were fired as Edwards made his escape. As he looked back, Edwards saw defendant and Eddie Roy Jackson return to his car (where his wife remained) and drive away. Edwards stated that, when the police recovered his vehicle early the next morning, his tool box and the tools contained therein were missing. Both Edwards and his wife (who later testified) positively identified defendant as one of the men involved in the incident. The state established that this second incident occurred approximately 1.2 miles from the scene of the attempted armed robbery of Horton and a short time thereafter.

Eddie Roy Jackson then testified that he and defendant had been in both incidents and that they had previously planned to rob someone that night. After the attempted armed robbery of Horton, they walked to a second liquor store where they encountered Edwards and asked him for a ride. After Edwards ran off, he and defendant drove to Sabine Parish where Edwards’ tool box and tools were removed from the automobile and stored in a house. Thereafter, as they were driving back to Mansfield, they were arrested. Edwards’ wife was with them during the entire episode.

In order for evidence of similar acts committed by defendant to be admissible under La.R.S. 15:445 and 446, the other crimes must first be so distinctively similar as to preponderantly demonstrate that their perpetrator must be the same person. State v. Mitchell, 356 So.2d 974 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976). The proof of the other crime must be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Mitchell, supra; State v. Frederick, 340 So.2d 1353 (La.1976). Finally, the probative value of the evidence of the other crime must outweigh any prejudicial effect. State v. Jackson, supra; State v. Moore, 278 So.2d 781 (La.1973) (on rehearing).

Pretermitting the issue as to whether the evidence of the other crime allegedly committed by defendant was so distinctively similar to the crime charged as to preponderantly demonstrate that their perpetrator must be the same person, we find such evidence inadmissible under La.R.S. 15:445 and 446 because it is not relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one).

Horton identified defendant without reservation as the perpetrator of the attempted armed robbery. Likewise, Eddie Roy Jackson described in detail how he and defendant had attempted to rob Horton. Defendant adduced no evidence seriously contesting this identification testimony. Hence, the identity of the accused is not an arguable fact of consequence at actual issue, since the accused did not attempt to show mistaken identity. State v. Showers, 359 So.2d 104 (La.1978). Nor did defendant offer any evidence negating the state’s allegation that he possessed the requisite specific intent to commit an armed robbery of Horton. Therefore, defendant’s specific intent (or lack thereof) was not an arguable fact of consequence at actual issue. See State v. Frederick, supra. In addition, we can discern no other arguable fact of consequence to defendant’s present innocence or guilt to which evidence of defendant’s alleged participation in the other offense might have been relevant. We therefore conclude that the sole effect of the state’s use of other-crime evidence in the instant case was to infer that defendant committed the present crime because he had committed the other one.

The state alternatively contends that other-crime evidence was admissible as part of the res gestae of the present offense.

To constitute res gestae, the “circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” La.R.S. 15:447-448; State v. Morris, 340 So.2d 195 (La.1976). In the instant case, the state offered no evidence establishing any relationship or connexity between the two offenses (e. g., that the offense against Edwards was part of defendant’s escape from the alleged attempted armed robbery of Horton). Cf. State v. Witherspoon, 292 So.2d 499 (La.1974). Although related in time and place, we are unable to say that the robbery of Edwards was an immediate concomitant of the attempted armed robbery of Horton and formed in conjunction with it one continuous transaction. Rather, the transaction that culminated in the attempted armed robbery of Horton was clearly at an end when the incident involving Edwards occurred. Hence, evidence of the offense involving Edwards was not part of the res gestae of the attempted armed robbery of Horton. Additionally, the evidence of the Edwards robbery was in no way relevant to prove that defendant was involved in the alleged attempted armed robbery of Horton or to prove any essential element of the crime allegedly committed against Horton. See State v. Matthews, 354 So.2d 552 (La.1978); State v. Davis, 311 So.2d 860 (La.1975).

In sum, we find that the evidence introduced by the state constituted inadmissible evidence of another crime allegedly committed by defendant. Accordingly, the trial judge erred in overruling defendant’s objections to the introduction of such evidence.

DECREE

For the reasons assigned, the conviction and sentence are reversed and set aside and the case is remanded to the district court for a new trial in accordance with law.

SUMMERS, C. J., dissents.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . La.R.S. 15:445 provides:
      In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.
      La.R.S. 15:446 provides:
      When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.

      . Defendant did attempt to establish that Eddie Roy Jackson forced or coerced him to participate in the robbery of Edwards. However, defendant did not make this contention as to the robbery of Horton. Hence, his specific intent, as it related to the Horton incident (the crime charged), was not an arguable fact at issue.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Paul GOODBIER, Jr.
    No. 62904.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Chester R. Cedars, Gauthier & Cedars, Ltd., Breaux Bridge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., J. Phil Haney, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On February 15,1977, Paul Goodbier was charged by bill of information with the attempted aggravated rape of a female, a violation of La.R.S. 14:42. After a number of delays, resulting primarily from disagreements between defendant and the various retained and appointed attorneys who worked on the case for him, the defendant was tried by a twelve-person jury on January 9-11, 1978. On March 6, 1978, the trial judge sentenced the defendant to serve eighteen years at hard labor in the custody of the Department of Corrections.

Shortly after sentencing, on March 10, 1978, the defendant filed a motion for appeal and a motion to act as his own attorney in the appellate proceedings. The trial judge granted both of these motions but appointed an attorney to assist and advise the defendant in the exercise of his appellate rights. Appointed counsel prepared three assignments of error, and defendant himself prepared seventeen assignments of error for review by this Court. We find that only the first assignment of error raises a substantial question.

In his first assignment of error defendant argues that he is entitled to a new trial on the ground that material portions of the trial court proceedings were not recorded. The state concedes that none of the voir dire examination of prospective jurors in this case was recorded.

No person may be imprisoned in this state without the right of judicial review based on a complete record of all evidence upon which the judgment is based. La. Const, art. 1, § 19. See also, La.C.Cr.P. art. 843. This Court has on several occasions found reversible error where material portions of the trial court record were unavailable or incomplete. State v. Parker, 361 So.2d 226 (La.1978); State v. Jones, 351 So.2d 1194 (La.1977); State v. Ford, 338 So.2d 107 (La.1976); State v. Bizette, 334 So.2d 392 (La.1976); State v. Rooney, 187 La. 256, 174 So. 348 (1937). See also, Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

However, affidavits of record by the court reporter and the defendant’s trial counsel state that no objections were made by the defense during the voir dire. Absent a contemporaneous objection this Court can review only errors discoverable by a mere inspection of the pleadings and proceedings. La.C.Cr.P. art. 920; State v. Mack, 243 La. 369, 144 So.2d 363 (1962). The only error of this nature which could arise during voir dire is the absence of the defendant, and a minute entry in the record of this case specifically provides that the defendant was present during this portion of the trial.

Moreover, the minutes kept during the trial, as as well as the affidavits, reveal that the defendant’s peremptory challenges were not exhausted. Therefore, the defendant could not complain of a refusal by the trial court to sustain a challenge for cause even if such a ruling had been made. La.C.Cr.P. art. 800.

For purposes of this review we have accepted as true the sworn affidavits of the court reporter and defendant’s trial counsel which were filed into the record of this case. Finding on the basis of these documents that no error was preserved for our review which necessitates an inspection of the voir dire proceedings, we conclude that the failure to record that portion of the trial, for whatever reason, constituted only harmless error. See, State v. Kemp, 359 So.2d 978 (La.1978); State v. Francis, 345 So.2d 1120 (La.1977). Defendant may, of course, by application for writ of habeas corpus, challenge the veracity of the affidavits.

The remaining assignments of error present insubstantial questions which are settled under prior jurisprudence of this Court.

The conviction and sentence are affirmed.

AFFIRMED.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . Counsel appointed for appeal was not the same counsel who represented the defendant at trial.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Monroe L. JENNINGS, Jr.
    No. 62965.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      C. Allen Bradley, Jr., Evans & Bradley, De Ridder, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Monroe L. Jennings, Jr. was charged by bill of information with the armed robbery of a convenience store, a violation of R.S. 14:64. After a jury trial the defendant was found guilty as charged and was sentenced to serve fifteen years with the Louisiana Department of Corrections. On appeal the defendant assigns three errors; one error requires reversal.

During the early morning hours of December 11, 1977, law enforcement officers of Beauregard Parish overheard a radio transmission from Troop D of the Louisiana State Police in Lake Charles which reported an armed robbery and attempted murder. The perpetrators were reported to be in a white Oldsmobile with a red top, license number KWE372, and to be headed north on U. S. Highway 171 toward DeRidder. The officers soon afterward observed a vehicle fitting the description traveling in the same direction at a high speed and requested assistance. A roadblock was set up and the car was stopped when a DeRidder policeman shot out one of its tires. The Oldsmobile was towed to the city police station where it was searched and its contents seized by the authorities. The defendant and two companions were arrested and taken to the parish jail.

During the booking and initial interrogation procedure at the parish jail, Officer Cooley of the sheriff’s office asked the defendant to sign a waiver of rights form and asked him whether he would attempt to escape if the handcuffs were removed. At that point, Officer Benton of the DeRidder police said Jennings wouldn’t go anywhere, then approached Jennings, ordered him to stand and to open his mouth, and placed a .45 caliber pistol in his mouth. Benton then cocked the trigger. The defendant also alleges that he was subjected to curses and racial insults by the two officers, especially Officer Cooley.

Approximately thirty-six hours later on December 12,1977, the defendant was questioned by deputies Ronald Wilson and Joe Bartlett of the sheriff’s office and gave a statement admitting his part in the robbery. According to the officers, defendant appeared calm and in complete control of his emotional and mental faculties. Officer Bartlett advised the defendant of his rights to counsel and to remain silent, and Jennings signed a form waiving these rights. Jennings gave a “dry-run” statement, which was later typed by Officer Bartlett and signed by Jennings who also initialed each page. Both officers were aware that Jennings had been threatened on the previous day, and Officer Bartlett testified that he attempted to emphasize to the defendant that his department took no part in those actions and did not approve of them.

Although Jennings corroborated the officers’ testimony in several particulars, he insisted that his statement resulted from fear of further mistreatment. According to his testimony, Officer Bartlett in the course of conversation leaned back in his swivel chair toward a rifle in a gunsock which was propped against a wall behind the officer’s desk. Bartlett then allegedly told the defendant that he did not want to get rough and that the police would discover what had happened in any event. Jennings claimed this behavior convinced him that he would be beaten with the rifle unless he waived his rights and confessed his involvement in the crime.

When questioned about these allegations, both officers were uncertain whether a rifle had been present in the office, but admitted that one was sometimes kept in a gunsock behind Bartlett’s desk. Officer Bartlett stated unequivocally that he had not moved toward any gun while interrogating Jennings, but later qualified this statement by admitting that he was certain that he had rocked back in his chair during the interview. Bartlett was also certain that he had never referred to “getting rough” with the defendant, but Officer Wilson testified that he perhaps remembered such a reference in the context of Bartlett’s statement that he did not intend to act like the city policeman.

Before a confession may be admitted in evidence, the state bears the burden of proving beyond a reasonable doubt that the statement was freely and voluntarily made and was not the result of threats, coercion, or promises. R.S. 15:451; C.Cr.P. 703; State v. Bias, 352 So.2d 1011 (La.1977); State v. Glover, 343 So.2d 118 (La.1976). The state must also prove that Miranda warnings were properly given to the defendant. State v. Hutto, 349 So.2d 318 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

In reaching its decision, the trial court relied on several circumstances as indicating that the confession given on December 12 was sufficiently insulated from any taint arising from the pistol incident. The court noted that the defendant confessed almost thirty-six hours after the incident and after having been advised of and having waived his Miranda rights. The statement was given in the sheriff’s administrative offices during the early afternoon of a workday rather than “in the dead of the night . at some unseemly hour.” The defendant was also assured by Deputy Bartlett that the sheriff’s office in no way condoned the conduct of the DeRidder policeman.

Although these factors, when viewed alone, may indicate that Jennings’ statements were voluntary and not a product of coercion, other circumstances belie this conclusion. While it is true that thirty-six hours elapsed between the threat and the confession, Jennings passed this time in the exclusive custody of the police in the same jail where he was threatened. The prosecution has also stressed the fact that a city policeman pulled the gun on the defendant, but that he confessed to sheriff’s officers. However, Officer Cooley of the sheriff’s department was present at the incident and did nothing to restrain Officer Benton from mistreating the prisoner. The defendant also testified that Officer Cooley cursed him and referred to an accomplice as “that nigger in the other room.” It is therefore not unlikely that any assurances which Deputy Bartlett later gave that the sheriff’s office did not approve of such methods failed to assuage Jennings’ fears. Finally, it would not have been unreasonable for the defendant to interpret Deputy Bartlett’s actions as an implied threat of further mistreatment. Bartlett admitted that he had leaned back in his chair during the interrogation and that a rifle could have been leaning against the wall behind his desk. Although Bartlett denied ever having said that he did not want to get rough, Officer Wilson stated that the remark could have been made when Bartlett tried to separate the actions of his department from those of the DeRid-der policeman. When all the circumstances are considered, it is easy to understand that Jennings knew he was in a place where guns were used to obtain cooperation.

The trial judge correctly characterized the deplorable conduct of the police at the booking of defendant, and would have suppressed the confession if it had been made an hour or so after the incident. The coercive effect of the police misconduct cannot be denied. The duration of that coercive effect might vary among people and places. But the record before us does not establish that the effect (of the .45 caliber gun barrel in defendant’s mouth while the gun was cocked) had diminished at the time of the interrogation. That was the state’s burden. Therefore, the trial court was in error to hold that the prosecution had carried its heavy burden of proving that the confession “was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” R.S. 15:451.

Accordingly, the conviction and sentence are reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Joe W. Sanders, Retired.


author: CULPEPPER, Justice Ad Hoc.

text:
    STATE of Louisiana ex rel. Sammie ROBINSON, Relator, v. Frank BLACKBURN, Warden, Respondent.
    No. 62961.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Stanley E. Branton, Stan Branton & Associates, Inc., Wilson R. Ramshur, Willis & Ramshur, St. Francisville, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Special Asst. Dist. Atty., for defendant-respondent.
   CULPEPPER, Justice Ad Hoc.

The relator, Sammie Robinson, while serving a life sentence at Angola, was indicted on January 4, 1974, under LSA-R.S. 14:30(3) for the first degree murder of a fellow inmate on November 22, 1973. He plead not guilty and his trial commenced on November 14, 1974. At the close of the State’s case, defense counsel moved for a directed verdict of acquittal, a procedure then available in Louisiana but later repealed. The trial court granted the motion on the grounds that the State had failed to introduce any evidence that the defendant was serving a life sentence at the time of the alleged murder, a necessary element of the crime. After a brief recess and before the jury was discharged, the relator plead guilty under the same indictment to the lesser included offense of second-degree murder. He was sentenced to life imprisonment.

Subsequently, the defendant applied for a writ of habeas corpus on the basis that he had been put in jeopardy twice for the same offense. The trial court denied the writ of habeas corpus. We granted writs.

The relator states his one assignment of error as follows:

“The trial erred in denying the petitioner’s writ of habeas corpus on the ground that the amendment of the bill of indictment and the entry of a plea of guilty to second degree murder after a directed verdict of acquittal as to first degree murder was not valid being unsupported by a valid indictment and if valid offended the Constitutional prohibition against double jeopardy.”

The decisive issues are: (1) Does a directed verdict by a judge differ from a verdict of acquittal by a jury in that a defendant may be subjected to trial on a lesser included offense if the motion is granted by a judge, whereas, if acquitted by a jury, double jeopardy precludes any further prosecution? (2) Does a plea of guilty waive the right to raise the issue of double jeopardy?

Protection against double jeopardy is guaranteed to a defendant in a state court under both the federal and state constitutions. U.S.Const. Amend. V; La. Const, of 1974, art. 1, Sec. 15; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). It is a guarantee against a second prosecution for the same offense after acquittal or conviction, and against multiple prosecutions for the same offense. State of Louisiana v. Cotton, 341 So.2d 362 (La.1976); State v. McCarroll, 337 So.2d 475 (La.1976).

This principle forms the basis of Article 591 of the Code of Criminal Procedure:

“No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

The protections afforded by these provisions are implemented when the accused has actually been placed in jeopardy. Article 592 of the Code of Criminal Procedure describes at what point jeopardy attaches:

“When a defendant pleads not guilty, jeopardy begins when the first witness is sworn at the trial on the merits. When a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.”

Second-degree murder was a lesser grade of, and a responsive verdict to, first-degree murder at the time of the offense and at the time of the trial, Act 126 of 1973. Therefore, the charge of first-degree murder included second-degree murder in the “same offense,” within the meaning of the double jeopardy provisions of La.Code of Criminal Procedure, Art. 596(1):

“Double jeopardy exists in a second trial only when the charge in that trial is: “(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial;”

It is also clear that the trial on the first-degree murder charge, to which the defendant had plead not guilty, had progressed beyond the point at which jeopardy attached, i. e., the swearing of the first witness. If the judgment of acquittal of first-degree murder had been by the jury, double jeopardy would clearly have prevented prosecution or sentence for second-degree murder. The issue is whether the directed verdict had the same effect.

At the time of trial, La.Code of Criminal Procedure, Article 778 provided:

“In a jury trial the court may direct a verdict of not guilty of one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.”

The State argues in brief to this Court that the authority of the trial court to grant a directed verdict on one or more of the offenses charged allows a judge to grant a directed verdict specifically on the charge for which the defendant is being tried, but not the lesser included offenses of that charge. In the present case, the trial judge specifically granted the motion as to the first degree murder charge. However, the defense argues that there is no difference between a judge’s directed verdict and a jury’s verdict of acquittal.

One essential distinction between the directed verdict and the jury verdict is that the jury has the option to return a verdict of guilty on a lesser and included offense while the trial judge’s directed verdict of acquittal can only be on the charge contained in the indictment. The state argues that this difference means that a judge’s directed verdict of acquittal of first-degree murder is “limited”, i. e., it is only a legal holding as to the offense charged and leaves unanswered the question of the defendant’s guilt on any lesser or included offenses. In essence, the State maintains that a directed verdict, unlike a jury verdict, is only an acquittal of the offense charged, and not an acquittal of the lesser included offenses.

We find no cases which squarely decide the precise issue here. In Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) the court faced the question of whether the government could retry the petitioners after a judgment of acquittal had been entered at the direction of the trial judge. In a per curiam opinion, the court held that a retrial of the accused after the entry of the judgment of acquittal at the direction of the trial judge would be a violation of the double jeopardy prohibition.

State v. Baskin, 301 So.2d 313 (La.1974) and State v. Johnese, 304 So.2d 331 (La.1974) did not involve lesser included offenses, but the language used supports a holding that a directed verdict has the same effect as a jury verdict. In both eases, the central issue was whether the State could appeal from a directed verdict of acquittal. We held that the state and federal constitutional guarantees against double jeopardy prohibit appeal by the state from a directed verdict of acquittal, the same as if the verdict had been by a jury. In Baskin, this court states:

“The difference between a directed verdict and a jury verdict, then, lies only in their source; the effect of acquittal is the same in either case. To draw a distinction between jury verdicts and directed verdicts where the Code of Criminal Procedure does not would violate the tenet that provisions of the Code of Criminal Procedure are to be construed ‘ . to secure simplicity in procedure . La.Code Crim.P. art 2 (1966) .

The court cites and approves the reasoning of Fong Foo v. United States, supra:

“Even where a directed verdict of acquittal is based upon ‘an egregiously erroneous foundation,’ the accused cannot be retried without violating the double jeopardy guarantee. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1961).

Faced with the same issue of whether the government can appeal after a judge has directed the entry of a judgment of acquittal, the U. S. Supreme Court has held in a series of cases that the constitutional prohibition against double jeopardy bars the appeal. U. S. v. Martin Linen Supply Company, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); and Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

In construing our former statute on directed verdicts, we consider two established rules of statutory construction: (1) All criminal statutes are construed strictly, and (2) the words of a statute must be read in their every day meaning. Under these principles, the phrase “one or more of the offenses charged” means the offenses which are expressly charged in the bill of information or indictment, whether one or more. The statute cannot be construed, as the State contends, to permit “limited directed verdicts”, i. e., directed verdicts limited to the offense charged and permitting further prosecution of lesser included offenses which are not expressly charged.

We conclude that under our former directed verdict statute, La.Code of Criminal Procedure, Article 778, a defendant acquitted by a directed verdict on the offense charged could not be retried on a lesser included offense without violating both the state and federal prohibitions against double jeopardy.

The issue of whether the relator waived his constitutional right against double jeopardy has been settled by this Court in the case of State v. Crosby, 338 So.2d 584 (La.1976). In that case, we held that even an unqualified plea of guilty will not waive “jurisdictional” defects, including double jeopardy.

For the reasons assigned, the relator’s conviction and sentence for second-degree murder are reversed and set aside. It is now ordered that judgment be entered in favor of the relator granting his petition for a writ of habeas corpus and discharging him from said sentence.

CALOGERO and DENNIS, JJ., dissent.

       Chief Judge William A. Culpepper of the Court of Appeal, Third Circuit, participated in this decision in place of Chief Justice Sanders, retired.

      . At the time of the alleged crime, LSA-R.S. 14:30(3) provided:
      “First degree murder is the killing of a human being: .
      “(3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; . . .”
      The mandatory death penalty under this murder statute has since been declared unconstitutional, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and replaced.


author: PER CURIAM.

text:
    STATE of Louisiana v. Odell DAVIS.
    No. 62978.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    William L. Lowe, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Odell Davis was convicted after a jury trial of aggravated rape, a violation of R.S. 14:42, and was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Upon this appeal defendant relies on ten assignments of error for a reversal of his conviction and sentence. Review of the substance of the assignments of error presented for review discloses that they lack reversible merit.

Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . The record contains seventeen assignments of error but only the ten assignments urged in brief filed in connection with this appeal are considered.


text:
    STATE of Louisiana v. Clarence Lee ROBERTS, Jr.
    No. 62986.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Crawford A. Rose, Jr., Rayville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant Roberts was convicted of simple arson, La. R.S. 14:52 and sentenced to five years imprisonment at hard labor. His appeal raises four assignments of error, comprising three arguments.

We find that none of the assignments present reversible error, nor do any involve legal issues not governed by clearly applicable legal principles. Some of the assignments require lengthy factual discussion of interest primarily to the parties, but not involving circumstances likely to recur. We have therefore discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this Court but which is not for publication.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

BLANCHE J., not participating.


author: SAMUEL, fustice Ad Hoc.

text:
    STATE of Louisiana v. Michael KONCIR, Jeanne Koncir and Marion Hutchens.
    No. 63002.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Philip A. LeTard, Vidalia, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., Glenn B. Gremillion, Asst. Dist. Atty., for plaintiff-respondent.
   SAMUEL, fustice Ad Hoc.

On March 14, 1978, a warrant was issued for the search of Jeanne Koncir’s residence on Lake Concordia, Louisiana. In executing the warrant later that night, law enforcement officers searched the named residence and an automobile parked in the driveway; they seized, inter alia, several pounds of marijuana and a large amount of cash. The occupants of the residence, Jeanne Koncir, Michael Koncir and Marion Hutchens, were arrested for possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. Shortly thereafter, the legality of the search was contested by a motion to suppress the evidence, which the lower court denied after a hearing. This Court granted supervisory writs to review the ruling below. 362 So.2d 787 (La. 1978).

Petitioners contend the warrant was issued upon insufficient facts and, further, the automobile search was not authorized by the warrant nor by any exception to the warrant requirement. Finding merit in both contentions, we conclude that the search was unlawful and that the evidence it yielded must therefore be suppressed.

I. VALIDITY OF THE WARRANT

A search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of the issuing judge. La.Const.1974, Art. 1, § 5; La.C. Cr.P. Art. 162. Probable cause exists when facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Turnipseed, 362 So.2d 486 (La.1978); State v. Richards, 357 So.2d 1128 (La.1978); State v. Valentine, 355 So.2d 897 (La.1978). To insure an independent basis for the issuing magistrate’s judgment, this Court has held to the following rule (derived from decisions of the United States Supreme Court) in evaluating affidavits which rely upon hearsay:

“The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.” State v. Paciera, 290 So.2d 681, 685-86 (La.1974).

With these fundamental principles in mind, we turn to the affidavit which supported the warrant at issue. It reads:

On the night of 3-23-78 affiants received information from two different persons known to these officers to be reliable and who are knowledgable of the following circumstances, and for reasons of personal safety wish to remain anonymous. Informants told these officers that one Jeanne Koncier [sic] has recently recieved [sic] a quanity of marijuana and is selling it tonight. One informant states he personally saw Koncier [sic] sell a lid of “Columbian Red-bud” marijuana to an acquaintance. The informants state Koncier [sic] regularly has pot parties on weekends, and deals heavily out of her residence on Lake Concordia. These officers have been recieved [sic] regular complaints on suspicious narcotics activity at this address for several months.

This affidavit, although fraught with ungrounded rumors, fails to comply with the requirements set forth above. First, it recites no facts which would enable the magistrate to independently evaluate the reliability of the informants. A stark assertion that they are “known to [the affi-ants] to be reliable” cannot suffice; the basis for an affiant’s belief in the trustworthiness of his informant must be articulated with specificity. State v. Richards, supra; State v. Joseph, 351 So.2d 1162 (La.1977).

Although it is unnecessary to consider the sufficiency of the affidavit beyond the first fatal flaw, we note it further fails to set forth facts from which the magistrate might have concluded the informants’ information was reliable. Undisclosed were the sources of the allegations that Jeanne Koncir had recently received a quantity of marijuana for immediate sale, that she “deals” out of her residence and, that she “regularly has pot parties on weekends.” Hence, the magistrate had no basis for crediting the accusations as more than idle rumor. Nor does the multiplication of the faceless voices into a chorus of factually unsubstantiated “regular complaints” alter the uncreditable nature of the accusations. See, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Tassin, 343 So.2d 681 (La.1977) (on rehearing)-

One item of information bears the required indicia of reliability: the sale by Jeanne Koncir of a “lid” of marijuana, which was personally observed by the informant. However, the hearing on the motion to suppress revealed that incident occurred not at petitioners’ residence, as the affidavit suggests, but in another town. The misleading implication was apparently accidental, but like any unintentional misrepresentation of fact, it must be excised from the warrant affidavit. See, State v. Rey, 351 So.2d 489 (La.1977). There remains no information in the affidavit upon which the magistrate might have relied to conclude contraband might be found in the Koncir residence. See, State v. Loehr, 355 So.2d 925 (La.1978); State v. Valentine, supra.

In summary, we find that the affidavit failed to state facts underlying the credibility of either the informants or their information, that the warrant was therefore issued improperly, and that the evidence seized under the authority of the warrant must be suppressed.

II. VALIDITY OF THE AUTOMOBILE SEARCH

During the course of the officers’ search of the Koncir residence, they also searched an automobile belonging to petitioner Hutchens, which was parked in the driveway. Before the search commenced, the police apparently had no evidence linking Hutchens (Jeanne Koncir’s father) to the reportedly illegal activity at the Koncir residence, and the warrant did not authorize the search of his car. However, the state attempts to justify the search of the vehicle on the basis of the “plain view” exception to the warrant requirement.

Recently, in State v. Banks, 363 So.2d 491, 493 (La.1978), this Court repeated the well-recognized prerequisites to the application to the plain view doctrine:

(1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is inadvertently discovered, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband.

Because the warrant is claimed as the “prior justification” for the intrusion onto the Koncir property, the automobile search is tainted by the invalidity of the warrant. Further, the search of the car was hardly “inadvertent,” since the officer who initiated it admitted at the hearing that he “had all intentions of searching the car when [he went] in the yard, sooner or later . . . ” Finally, the money seized from the car seat was not immediately identifiable as contraband.

Even if information obtained during the unlawful search of the residence provided probable cause for the search of Hutch-ens’ car, the latter search nevertheless must be condemned' as an exploitation of the primary illegality. See, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1971); State v. Thompson, 354 So.2d 513 (La.1978); State v. Jenkins, 340 So.2d 157 (La.1976).

For the reasons assigned, we find the trial court erred in denying the motion to suppress. Accordingly, the matter is remanded to the district court for further proceedings not inconsistent with this opinion.

      . At the hearing on the motion to suppress, one of the affiants asserted, for the first time, that the informant had personally observed “considerable drug activity” at petitioners’ residence. However, information possessed by the affiant, but not disclosed to the issuing magistrate for his consideration, cannot be used to rehabilitate an otherwise insufficient affidavit. See, Stone v. Powell, 428 U.S. 465, 473, n.3, 96 S.Ct. 3037, 3042, 49 L.Ed.2d 1067 (1976); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).


author: SUMMERS, Chief Justice.

text:
    STATE of Louisiana v. Ervin J. BAILEY, Jr.
    No. 62374.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Risley C. Triche, E. Robert Stemfels, Triche, Sternfels & Nail, Napoleonville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

The Grand Jury of Lafourche Parish indicted the defendant Ervin J. Bailey, Jr., for the first degree murder of one Thomas Taylor, a violation of Article 30 of the Criminal Code. The jury returned a verdict of guilty of manslaughter, and Bailey was sentenced to serve twenty-one years at hard labor.

On this appeal, defendant relies upon six assignments of error for reversal of his conviction and sentence. Assignments 7 and 8 are based upon the contention that the trial court erred in denying defendant’s motion for a new trial. Finding that these assignments are meritorious, and that defendant should be granted a new trial, it is unnecessary to consider the remaining assignments of error.

Allegations of the motion for a new trial considered pertinent to this reversal set forth that the verdict finding Bailey guilty of manslaughter would result in an injustice if permitted to stand.

In addition to other allegations, the motion alleges that defendant had discovered, since the verdict and judgment of his guilt, a prejudicial error or defect in the proceedings. It is alleged the State failed to apprise the accused of evidence adversely affecting the credibility of the State’s principal witness, Michael Wayne Moore, which the State was required to do pursuant to a defense motion for production and discovery. The motion asserts that on the day before Moore was called to testify at the trial, he was arrested on a felony charge, possession of narcotics, and bail was fixed at $25,000. The State, through the direct intervention of an Assistant District Attorney and with the consent of the committing magistrate and the Sheriff’s office, arranged for the release of this witness from jail, without bail, in order that he could testify against the accused while not in custody. After giving testimony prejudicial to the accused the witness was allowed to return to the street. It was not until several days later, upon complaint of the witness’ probation and parole officer, that the committing magistrate discovered that the witness Moore was on the streets without having posted bail. At that juncture the witness was again incarcerated.

According to the motion, these facts and circumstances affected the credibility of the State’s principal witness, a factor favorable to the defense. These facts occurred during the trial of the case, they were known to the prosecutor and could not have been discovered by the defense in the exercise of reasonable diligence.

The motion contained a list of the witnesses who would testify to the facts set forth in the motion.

At the hearing on the motion on March 22, 1978, testimony essentially corroborated the allegations of the motion, with the exception that Moore was incarcerated in the City Police lockup instead of the parish jail, and this occurred prior to trial. It was also shown that shortly after the trial the charges against Moore were “dropped”, and he was released from custody on the District Attorney’s finding that the evidence would not sustain a prosecution. At the time of the hearing the defense had summoned Moore to appear as a witness but the subpoena was returned “Unserved. Unable to locate.”

Prior to trial on October 3, 1977 defendant had filed a motion which prayed for the production of,

“Any evidence favorable to the accused, including but not limited to, statements of witnesses contradictory to any alleged eye witness accounts, records of arrests and convictions of state’s principal witnesses ; evidence of hostile demonstration or overt act on part of the victim toward the accused; evidence of dangerous character or threats of victim against the accused; evidence adversely affecting credibility of state’s witnesses;” (emphasis added).

It is the defense contention that the arrest and incarceration of Moore and his release from incarceration by the Assistant District Attorney on his own recognizance, despite the fact that the bond for his release on bail in the amount of $25,000 had not been furnished or set aside, were facts and circumstances which should have been furnished to the defense under the continuing request contained in the defense motion of October 3, 1977:

“To promptly notify the defendant and the Court on a continuing and ongoing basis of the discovery of additional evidence or the decision to use additional evidence subject to discovery or inspection under the order issued pursuant to this motion, so that the court may order additional discovery or allow defendant to make an appropriate motion for additional discovery or inspection.”

Other circumstances following the trial are also relied upon to support the defense contention that the State’s principal witness, Moore, may have gained the impression from his release prior to trial that his favorable testimony on behalf of the State would lead to his release from the charges then currently pending against him. Although no intention on the part of the State to bring about such an impression in the mind of its principal witness is charged and no such design is shown by this record, the circumstances do not dispel the inference that Moore may have gained such an impression. Failure to promptly return him to custody after trial, his subsequent release from custody because the District Attorney declined to accept the charges, and the fact that he could not thereafter be found to appear and testify at the motion to suppress, all support an inference that the information concerning Moore’s arrest, incarceration and release on his own recognizance, available to the State in advance of trial, should have been furnished to the defense for use at trial to attack Moore’s credibility.

Under the inference that Moore received the impression that his testimony favorable to the State would benefit him by releasing him from incarceration and would result in the dropping of charges against him, it is fair to expect that such an impression would adversely affect his credibility as to the defendant.

Defendant’s contention here is based upon the basic proposition announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that suppression by the prosecutor of material evidence favorable to the accused justifies a new trial irrespective of the good faith or bad faith of the prosecution. The Court in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), extended the rule of Brady v. Maryland to cases in which evidence adversely affecting the credibility of Government witnesses is withheld from the defense, reversing the judgment of a federal trial court on constitutional due process grounds. The test applied in that case was:

“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule. . Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.”

Thereafter the United States Supreme Court held in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), that the prosecutor, in keeping with the Brady v. Maryland principle, had a duty to disclose to the defense evidence material to the establishment of defendant’s innocence. In formulating the rule to be followed to fulfill this duty, the Court wrote:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

In a case decided by this Court three days before the Agurs decision was handed down, it was held, in State v. Carney, 334 So.2d 415 (La.1976), that it was reversible error for the State to fail to disclose, even inadvertently, that the prosecution had entered into a bargain with a witness, even though the information regarding the bargain went only to the credibility of the witness.

Most recently, in State v. Falkins, 356 So.2d 415 (La.1978), acting upon the authority of these cases, we decided that the failure of the prosecutrix to disclose, upon defense request, that two of the State’s witnesses had earlier misidentified one of the robbers, deprived defendant of a fair trial where the sole basis for conviction was the eyewitness identification of defendant as one of three robbers. The misidentification in this Court’s opinion, if brought to the attention of the trial jury, was sufficiently material to have raised reasonable doubt in the jury’s mind, both as to the witness’ own positive identification and also as to the strength of the State’s case.

It is the Court’s opinion that these decisions are applicable here. Although the trial court held that evidence of the witness’ arrest would not have been admissible because of the prohibition contained in Section 495 of Title 15 of the Revised Statutes, against evidence of arrest for the purpose of impeaching the credibility of witnesses, it was the release of the witness without bail several hours before he testified and the subsequent nondisclosure of that fact which made the evidence important to the defense and admissible under Section 492, where it is said that,

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.”

Thus, examination as to arrest is not within the prohibition of Section 495 when it is independently relevant to show particular bias or interest in the special case before the court under Section 492, which recognizes another and a different basis of impeachment than that of Section 495. State v. Robinson, 337 So.2d 1168 (La.1976).

In brief defense counsel states that he had interviewed the witness prior to trial, at which time the witness’ testimony was different. The sole and exclusively known explanation for the change, he argues, was an obvious anticipation by the witness that he would neither be charged nor his probation revoked upon the narcotics charge for which he was arrested. If defense counsel had been made aware by the prosecution of Moore’s arrest and release from incarceration just prior to trial, he could very probably have negated, to a considerable extent, the credibility of this important state witness and thereby created that reasonable doubt which would influence the jury in favor of the accused.

The argument is tenable and on this record we agree that a new trial should be granted.

For the reasons assigned, the conviction and sentence are reversed and set aside, and defendant is granted a new trial.

BLANCHE, J., not participating.


text:
    STATE of Louisiana v. Dennis LIGHTEN, Jr.
    No. 62487.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      J. Randolph Smith, Smith & Hingle, Jesse S. Heard, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Carl Par-kerson, Dist. Atty., John R. Harrison, Brian E. Crawford, Asst. Dist. Attys., for plaintiff-appellee.
   SUMMERS, Chief Justice.

A grand jury indictment of April 13,1977 charged that Dennis Lighten committed aggravated rape upon a named female on February 4, 1977. La.Rev.Stat. 14:42 (1975). After trial a jury of twelve returned a verdict of guilty as charged. Lighten was sentenced to life imprisonment on January 6, 1978 without the benefit of probation, parole, or suspension of sentence. The defendant urges nine assignments of error on this appeal.

Assignment 1: Prior to arraignment defense counsel applied for the appointment of a sanity commission to examine and report on defendant’s present mental capacity to proceed and to examine defendant and report on his mental condition at the time of the alleged offense, all in accordance with Articles 644 through 647 of the Code of Criminal Procedure. Accordingly, a sanity commission, composed of Dr. Merrett Dearman, a psychiatrist in private practice, and Dr. Andrew Myrick, a physician in residency at a state hospital, was appointed on April 19, 1977 and ordered to report their findings to the Court within thirty days.

Dr. Dearman examined and filed his written report timely. However, Dr. Myrick informed the court much later that he had been forbidden to perform such duties by his superiors. Whereupon defense counsel filed a motion to traverse the report and findings of Dr. Dearman in order to prohibit its use by the State in this case and to appoint a wholly new commission.

The motion complained of two alleged irregularities: 1) that Article 644 of the Code of Criminal Procedure mandates that the Coroner shall be a member of the Commission; and 2) that the Commission did not function as a unit as required by law because Dr. Dearman’s report was made independently of Dr. Myrick, the other member of the Commission who made no examination or report. After a hearing on the motion it was denied, and the presiding judge ruled that another doctor would be appointed to replace Dr. Myrick.

Paragraph A of Article 644 of the Code of Criminal Procedure provides:

“A. Within seven days after a mental examination is ordered, the court shall appoint a sanity commission to examine and report upon the mental condition of the defendant. The sanity commission shall consist of at least two and not more than three physicians who are licensed to practice medicine in Louisiana, and have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment. No more than one member of the commission shall be the coroner or any one of his deputies." (emphasis added).

To sustain his position that the sanity commission was improperly constituted, defense counsel refers to the last sentence of paragraph A of Article 644 which states that “No more than one member of the commission shall be the coroner or anyone of his deputies.” This stipulation in Article 644, it is argued, has the effect of mandating the inclusion of the coroner or one of his deputies in every sanity commission appointed by the court. Failure to include the coroner in the instant case had the effect of nullifying the legality of the Commission’s actions, the argument goes, and introduction of its report into evidence would prejudice the defendant to the extent that his conviction and sentence should be reversed.

At the hearing held on the defense motion to traverse it was established that the Coroner of Ouachita Parish was not a physician. This fact, together with our understanding of Article 644, convinces us that the ruling of the trial judge was correct.

Under the terms of the Article only “physicians who are licensed to practice medicine in Louisiana” may serve on sanity commissions. This would mean that the Coroner of Ouachita Parish was not qualified to serve on a sanity commission. And the stipulation in the article that “No more than one member of the commission shall be the coroner or any one of his deputies.” does not mandate the inclusion of the coroner or one of his deputies. To the contrary, the quoted provision is more properly designed to limit the number of state officials (the Coroner or his deputies) on sanity commissions because of the bias officials charged with enforcement of the criminal law sometimes harbor against persons accused of crime.

The other objection raised by the defense to the report of the Sanity Commission concerns the fact that Dr. Dearman filed his report prior to and separate from the reports of the other physicians later appointed to serve on the Commission in the place of Dr. Myrick. The argument is made for the defense that the members of the Commission should consult with one another, act together in the examination and file a joint report.

While this argument suggests what seems to be a plausible requirement, there is no law or decision of this court which prescribes such a collegiate approach to the problem. It may reasonably be inferred that the Legislature intentionally refused to regulate physicians in the performance of their purely professional tasks in a specialized field of medicine. Competent physicians, the Legislature undoubtedly concluded, could more correctly decide upon the methods they should adopt to carry out their orders. Freedom in this respect appears to be a desirable and necessary latitude a professional man should have.

This assignment of error is without merit.

Assignment 2: It is asserted that the report compiled by Dr. John Ritchie, a member of the sanity commission as ultimately formed, was tainted by the alleged illegality complained of in the motion to traverse. That issue was fully considered in our treatment of Assignment 1. Because the contentions there were found to be without merit, this assignment of error is likewise unfounded.

Assignments 3, 4 and 5: Together these assignments involve the defense contention that Article 652 of the Code of Criminal Procedure is unconstitutional because it imposes the burden of proof upon the defendant of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.

Recently in State v. Willie, 360 So.2d 813 (La.1978), this Court had occasion to again consider in depth a related contention involving Article 652. In a thorough review of the authorities, both federal and state, this Court reaffirmed the validity of Article 652 and approved our prior decisions on the subject. See State v. Glover, 343 So.2d 118 (La.1977); State v. Watkins, 340 So.2d 235 (La.1976); State v. Craig, 340 So.2d 191 (La.1976); State v. Berry, 324 So.2d 822 (La.1975); State v. Clark, 305 So.2d 457 (La.1974); State v. Toon, 172 La. 631, 135 So. 7 (1931).

This assignment is without merit.

Assignment 6: Abandoned.

Assignments 7, 8 and 9: During the second day of trial, defendant’s mother, a key defense witness, and other relatives advised court appointed counsel in open court that they wished to “fire” them and retain new counsel. On this note the jury was retired and the trial judge conducted an inquiry into the matter.

At that time both defense counsel moved to be relieved, stating that defendant had a constitutional right to counsel of his choice and their effectiveness was impaired. This impairment was evident because the very people who sought to “fire” appointed defense counsel were the key defense witnesses. The attempted withdrawal of appointed counsel was denied.

The following morning defendant’s family reappeared with another attorney who requested enrollment as counsel for the defendant, provided the judge would delay the trial by granting a continuance in order to enable counsel seeking enrollment to prepare for trial. In light of this new development appointed counsel again urged their motion for permission to withdraw. When all requests were denied, appointed counsel moved for a mistrial.

A continuance is the postponement of a scheduled trial or hearing, and may not be granted after the trial has commenced. La. Code of Crim.Pro. art. 708. A request for a continuance of this trial in progress came too late. The protracted recess required to permit retained counsel to prepare himself in this lock-up jury case would be detrimental to everyone concerned, including defendant.

Although the trial judge did not allow substitution of counsel in this matter, he did inform retained counsel that he could sit with appointed counsel during the trial to offer assistance and advice.

An attorney who waits until a trial has begun to seek enrollment, or to withdraw, has waited so long that the trial judge is justified in denying the request. The attempt smacks of a delaying tactic. State v. Hegwood, 345 So.2d 1179 (La.1977).

We have no reservations in upholding the trial judge in this instance, because he acted reasonably and ruled upon a sound basis. Moreover, defendant was properly represented at all stages of the proceedings by counsel who were competent and who exerted every reasonable effort on behalf of the defense.

The other issue raised by defense counsel is also untenable. Denying requests for enrollment and to withdraw as counsel are not grounds for mistrial within the letter of the law set forth in Article 775 of the Code of Criminal Procedure:

“A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
“A mistrial shall be ordered, and in a jury case the jury dismissed when the state and the defendant jointly move for a mistrial.”

Whether an attorney should be allowed to withdraw from the case when he is competent and familiar with the case, as appointed counsel were here, is a matter which addresses itself to the sound discretion of the trial judge. State v. Finley, 341 So.2d 381 (La.1976). See also State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971). We find no abuse of that discretion in this record.

Assignment 10: Abandoned.

Assignment 11: In brief defense counsel restates, by reference, his argument on assignments 4 and 5. Having found that these assignments lack merit, the restatement of the arguments in support of them adds nothing to the case.

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

BLANCHE, J., not participating.


text:
    STATE of Louisiana in the INTEREST of Russell GIANGROSSO, Lonnie Gros, and Scott Hood.
    No. 62835.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.
    Alan J. Robert, Gonzales, Benjamin C. Vega, Jr., Donaldsonville, for defendants-respondents.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-relator.
   SUMMERS, Chief Justice.

Three petitions to declare these juvenile defendants delinquent were filed on October 12, 1977 in the Ascension Parish Court, alleging that on October 8, 1977 the juveniles Russell Giangrosso, Lonnie Gros, and Scott Hood committed forcible rape. The petitions allege that each had sexual intercourse with a different female under the age of seventeen, without their lawful consent. La.Rev.Stat. 14:43.1.

In addition to other preliminary motions, the juvenile defendants served notice on the prosecutor on December 7, 1977 that they would take the depositions of the female victims. They also filed a motion alleging that the medical examination by the Coroner left certain physical conditions of the victims unanswered. An order was sought to compel the victims to submit to a physical examination by a physician to be named by the accused with the approval of the court. The prosecutor opposed these motions, contending such discovery was not authorized in juvenile proceedings.

After a hearing the trial judge found the central issue to be whether discovery in juvenile cases is governed by the provisions of the Code of Civil Procedure or by the rules and statutory enactments prescribed for criminal proceedings. Finding that juvenile proceedings involving serious crimes were essentially criminal in nature, the trial judge denied the application of the rules of civil procedure mandated by Sections 1579 and 1579.1 of Title 13 of the Revised Statutes to this case.

Certiorari was granted by the First Circuit, and the ruling of the trial judge was reversed. The Court of Appeal ordered the taking of the depositions and the examination of the victims by a physician. 361 So.2d 259. On the State’s application, cer-tiorari was granted to review the decision of the Court of Appeal. 362 So.2d 574.

In establishing the procedure for juvenile cases, in 1972 the legislature prescribed that “[t]he hearing shall be conducted in accordance with the general rules of procedure used in civil proceedings; . . ..” La. Rev.Stat. 13:1579. In a contemporaneous enactment, it was also provided that “[t]he rules of evidence prevailing in proceedings governed by the Code of Civil Procedure shall be applicable to a proceeding to declare a child delinquent . . ..” La. Rev.Stat. 13:1579.1. See Act 714 of 1972.

During the pendency of these proceedings a comprehensive “Code of Juvenile Procedure” was enacted by the Legislature by Act 172 of 1978, effective January 1, 1979. By this enactment the provisions of the Code were declared to “govern and regulate the procedure in all juvenile proceedings” . “[pjending on the effective date of this Code,” including those on appeal. Code of Juv.Pro. art. 121 and Sec. 4. Article 59 of that Code provided that “In delinquency proceedings, discovery shall be as provided in the Louisiana Code of Criminal Procedure.”

In its brief the defense argues that when the State filed its original application it prayed for an extension of time solely for purposes of delaying the decision date past the effective date of the Code of Juvenile Procedure. The argument tacitly concedes that the new Code, if applicable, would render the defense contentions on the deposition and discovery issues moot.

We do not agree that this record indicates that the State’s pleadings were designed to create delay. On the contrary, it is more reasonable to infer that the State’s actions were designed to obtain a judicial determination of the right of the defendants to physically examine the victims. It was obviously an effort on the State’s part to obtain an order to protect the victims from a request it perceived as an attempt to harass, intimidate or humiliate these young girls. A medical examination of the victims had been performed by the coroner soon after the alleged offense and his written report was available to the defense. The defense motion, coming as it did two months after the offense, could hardly be expected to discover material evidence by such a belated examination.

We are of the opinion that the Code of Juvenile Procedure is applicable to the instant case. By the provisions of Article 59 of the Code, defendants are limited in their right to discovery to the provisions of Title XXIV, Chapter 5, Part A, Articles 716-729.-1, of the Code of Criminal Procedure. It is necessary, therefore, that the defense notice to take depositions and motion for discovery be reconsidered by the trial court in the light of Article 59 of the Code of Juvenile Procedure.

For the reasons assigned, the case is remanded to the trial court to be proceeded with in a manner not inconsistent with the views expressed in this opinion.

BLANCHE, J., not participating.

      . As set forth in Act 714 of 1972 these sections provide:
      “§ 1579. Hearing
      “A. All cases of children shall be heard separately from the trial of cases against adults and shall be tried without a jury. Whenever the parents of the juvenile in whose interest the petition has been filed are financially unable to procure or employ counsel and make such fact known to the court before the hearing, the court before whom the hearing shall be conducted may assign counsel consisting of one or more members of the Louisiana bar. Where the parents of the juvenile are able financially to employ counsel and fail or refuse to do so the court may assign counsel to represent the interest of the juvenile at the expense of the parents. The hearing shall be conducted in accordance with the general rules of procedure used in civil proceedings; provided, however, the constitutional privilege against selfincrimi-nation shall be applicable in the case of children as it is with respect to adults within the jurisdiction of the juvenile court. The hearings shall be reported or recorded by stenographic notes or a mechanical or electronic recording device. If a party desires a transcript for appeal purposes he shall pay the cost of the same unless the court determines he is financially unable to bear the burden of such cost. The cost of the transcript in such cases shall be paid for out of the general fund of the parish, Orleans Parish not excepted, or other funds available to the court.
      “B. The general public shall be excluded from hearings under this Act. Only the child, his counsel, witnesses, the child’s parents, tutor or other custodian, the officers of the court, and any other persons as the court finds have a legitimate or proper interest in the proceedings or in the work of the court may be admitted by the court. The court may exclude any person from the hearing if such person’s conduct is disruptive of orderly proceedings and the court’s admonition to conduct himself properly is not heeded promptly.
      “§ 1579.1 Evidence
      “The rules of evidence prevailing in proceedings governed by the Code of Civil Procedure shall be applicable to a proceeding to declare a child delinquent, neglected or dependent, in need of supervision, in need of the protection of the state or abandoned; provided, however, no child shall be adjudged to be delinquent in the absence of proof beyond a reasonable doubt that such condition exists.”


text:
    STATE of Louisiana v. Nancy Brown TILLMAN
    No. 63858.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Nancy Brown Tillman, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Caddo.

Writ denied.


text:
    Huey P. BONNER et al. v. MOREHOUSE PARISH SCHOOL BOARD et al.
    No. 63709.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Huey P. Bonner et al. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Morehouse. 366 So.2d 588.

Writ denied. The result is correct.


text:
    SLAGLE-JOHNSON LUMBER CO., INC. v. LANDIS CONSTRUCTION CO., INC., et al.
    No. 63701.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Slagle-Johnson Lumber Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Ouachita. 366 So.2d 206.

Granted.

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:
    In re Johnny Everett DOLLAR.
    No. 63835.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
   In re Johnny Everett Dollar applying for petition for determination of qualification for admission to the Louisiana State Bar Association.

Writ granted. The application and concurrence of the Bar Association considered: The Committee on Bar Admissions of the Louisiana State Bar Association is ordered to permit the applicant to take the bar examination in February, 1979, and then conduct a hearing on the good character of the applicant.


text:
    STATE of Louisiana ex rel. George Herbert ENGLISH v. Hon. L. E. HAWSEY, Judge, 14th Judicial District Court.
    No. 63620.
    Supreme Court of Louisiana.
    Jan. 30, 1979.
   In re George Herbert English, applying for remedial writs. Parish of Calcasieu.

Considering the application of George English dated January 26, 1979, as supplemented by the return of the district judge enclosing his ruling of January 26, 1979, it is ordered that George English be returned to the custody of the Calcasieu Parish Sheriff. In the absence of a showing that he is a security risk after a contradictory hearing held for that purpose, relator must be retained in the custody of the Sheriff of the Parish of conviction until his appeal is final and his sentence becomes executory.


text:
    L. F. P., CORPORATION NO. 1, L. F. P. Corporation No. 2, U. T. Corporation, L. J. One, Inc., L. J. Two, Inc., and the Plaza In Lake Forest v. SIZZLER FAMILY STEAKHOUSES OF SOUTHERN LOUISIANA, INC.
    No. 63872.
    Supreme Court of Louisiana.
    Jan. 30, 1979.
   In re L. F. P., Corporation No. 1, et al., applying for writs of certiorari. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. Steven LUKEFAHR, Joseph Trotta and Gregory Falcone.
    No. 63871.
    Supreme Court of Louisiana.
    Jan. 30, 1979.
   In re Steven Lukefahr et al., applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Washington.

Writ denied.


text:
    STATE of Louisiana v. Norman WIEGAND.
    No. 63746.
    Supreme Court of Louisiana.
    Jan. 30, 1979.
   In re Norman Wiegand applying for motion for appeal bond. Parish of Jefferson.

Not considered. Does not comply with our rules in that relator does not furnish attachments required for supervisory relief. See La.C.Cr.P., art. 322. The trial court retains jurisdiction to fix bond on the charge of which convicted, even though an appeal has been taken, La.C.Cr.P. art. 916, and relator may apply for supervisory relief if and when his probation is revoked.


text:
    In re John L. GASERY, Jr.
    No. 63863.
    Supreme Court of Louisiana.
    Jan. 31, 1979.
   In re John L. Gasery, Jr., applying for admission to the Louisiana Bar.

Writ denied.


author: SUMMERS, C. J., BLANCHE, J.,

text:
    STATE of Louisiana v. Warren GAMBINO.
    No. 61728.
    Supreme Court of Louisiana.
    Jan. 31, 1979.
   In re Warren Gambmo, applying for motion to recall mandate. Orleans Parish.

Under our supervisory jurisdiction, execution of the sentence is stayed for an additional ninety days from this date or until the denial of certiorari by the United States Supreme Court, whichever occurs sooner.

SUMMERS, C. J.,

dissents. This Court has previously granted a stay of execution to this applicant in excess of the time permitted. Finally stay of execution was denied by this Court and in the United States Supreme Court. In my view, the majority of this Court is without authority to grant a further stay of execution where application for certiorari has been filed in the United States Supreme Court and that Court has denied a stay of execution.

BLANCHE, J.,

dissents. Relator exercised his remedy with the U. S. Supreme Court and the same relief he received here today was denied by that court. The writ should be denied.


text:
    STATE of Louisiana v. David Howard WYDNER.
    No. 63876.
    Supreme Court of Louisiana.
    Feb. 2, 1979.
   In re David Howard Wydner applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Denied as to Assignment No. 1. Granted as to Assignment No. 2. The State is ordered to furnish the defendant with the statement referred to in Assignment No. 2.

SUMMERS, C. J., and MARCUS, J., dissent from the order issued on Assignment No. 2.


text:
    Willie SINGLETON v. LOUISIANA STATE BAR ASSOCIATION and Edward F. Wegmann in his capacity as Chairman of the Committee on Bar Admissions.
    No. 63879.
    Supreme Court of Louisiana.
    Feb. 2, 1979.
   In re Willie Singleton applying for petition to take bar examination.

Application denied.


text:
    STATE of Louisiana v. Mary DEROCHE.
    No. 63926.
    Supreme Court of Louisiana.
    Feb. 7, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari and stay order. Orleans Parish.

Writ denied. No abuse of discretion shown.


text:
    STATE of Louisiana ex rel. Warren HARVEY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 63445.
    Supreme Court of Louisiana.
    Feb. 8, 1979.
   In re Warren Harvey applying for remedial writ. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Warren HARVEY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59103.
    Supreme Court of Louisiana.
    Feb. 8, 1979.
   In re Warren Harvey, applying for reconsideration. Orleans Parish.

In view of the request for reconsideration and the information contained therein and in the records involved, reconsideration is granted and this writ is denied.


text:
    STATE of Louisiana v. Tyrone BENNETT and Jessie J. Clinton, Jr.
    No. 63780.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Tyrone Bennett and Jessie J. Clinton, Jr., applying for writs of certiorari, supervisory writs, mandamus and prohibition. Parish of DeSoto.

Writ denied.


text:
    STATE of Louisiana ex rel. Hillery PRESTON v. Frank C. BLACKBURN, Warden.
    No. 63781.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Hillery Preston applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Roy F. PELTIER v. Hayden J. DEES, Warden.
    No. 63783.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Roy F. Peltier applying for writ of certiorari. Parish of Iberia.

Writ denied. See No. 56,960 on the docket of this Court.


text:
    STATE of Louisiana v. Curtis J. DANDRIDGE.
    No. 63786.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Curtis J. Dandridge, applying for remedial writs. Orleans Parish.

Denied.


text:
    STATE of Louisiana ex rel. Curtis DANDRIDGE v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 63805.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Curtis Dandridge applying for remedial writ. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Curtis J. DANDRIDGE.
    No. 63287.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Curtis J. Dandridge applying for remedial writ. Orleans Parish.

Not considered. Relator must first apply to the trial court and specify the grounds upon which his contention is based that his sentence was illegal.


text:
    STATE of Louisiana v. Willie James GIBSON.
    No. 63512.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Willie James Gibson applying for remedial writ. Ouachita Parish.

Not considered. This matter has been previously disposed of in 365 So.2d 824.


text:
    STATE of Louisiana ex rel. Clarence F. COLE v. Hon. Donovan W. PARKER, Judge, 19th Judicial District Court, E. Baton Rouge Parish.
    No. 63496.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Clarence F. Cole applying for writ of mandamus. Parish of East Baton Rouge.

Writ denied. Moot. The trial judge has ruled.


text:
    STATE of Louisiana v. Frank GORMAN.
    No. 63747.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Frank Gorman applying for writ of certiorari, mandamus, prohibition and for a stay order. Parish of Orleans.

Denied, adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. Hon. Graydon K. KITCHENS, Jr., Judge.
    No. 63751.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re McArthur Johnson applying for writ of mandamus. Parish of Bossier.

Writ denied.


text:
    STATE of Louisiana ex rel. John D. BROWN v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 63754.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re John D. Brown applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Gary JEFFERSON.
    No. 63755.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Gary Jefferson applying for remedial writ. Parish of Orleans.

Denied. This case is on appeal; we are informed that a transcript is being prepared.


text:
    Succession of Mrs. Sara LAZARD, widow of Leo L. Hirsch.
    No. 63759.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Mrs. Jean Hirsch Frank and Mrs. Leolan Hirsch Roos, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. David W. JACKSON.
    No. 63761.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re David W. Jackson, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of LaSalle.

Writ denied.


text:
    Harold STOKES v. AMERICAN MOTORISTS INSURANCE COMPANY et al.
    No. 63763.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Harold Stokes applying for writ of certiorari and/or mandamus. Parish of Tangipahoa.

Writ denied.


text:
    Gregory A. GRANT v. Susan Aliene Elkins GRANT.
    No. 63770.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Susan Aliene Elkins Grant, applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of More-house.

Denied.


text:
    STATE of Louisiana v. Charles E. WHITTINGTON, II.
    No. 63731.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Charles E. Whittington, II applying for remedial writ. Parish of Lafayette.

Writ granted. Evidentiary hearing ordered.


text:
    STATE of Louisiana ex rel. Welton BROWN v. Frank C. BLACKBURN, Warden.
    No. 63758.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Welton Brown, applying for remedial writs of certiorari. Assumption Parish.

Writ granted. Application transferred to the 23rd Judicial District Court for appropriate action.


text:
    STATE of Louisiana ex rel. Clayton Charles GLOVER v. Frank C. BLACKBURN, Warden.
    No. 63782.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Clayton Charles Glover applying for writ of certiorari. Parish of Lafayette.

Writ granted. Trial Court is ordered to act on the motion.


text:
    STATE of Louisiana v. Charles E. WHITTINGTON, II.
    No. 63429.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Charles E. Whittington, II, applying for remedial writ. Parish of Lafayette.

Writ granted. Evidentiary hearing ordered.


text:
    STATE of Louisiana ex rel. Harold L. HAYES v. Frank BLACKBURN, Warden.
    No. 63801.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Harold L. Hayes applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would order an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Henry Lee FRIERSON and James Oliver Raphiel v. Dwight D. PYBURN, Clerk of Court, 1st Judicial District Court, Parish of Caddo.
    No. 63729.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Henry Lee Frierson and James Oliver Raphiel applying for writ of mandamus. Parish of Caddo.

Writ denied.


text:
    Edward MARYLAND v. INTRACOASTAL TRUCK LINE, INC.
    No. 63797.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Edward Maryland applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson.

Writ denied.


text:
    Ernie JONES v. STATE FARM FIRE & CASUALTY COMPANY.
    No. 63798.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re State Farm Fire & Casualty Co. applying for writ of certiorari, First Circuit Court of Appeal. Parish of Tangipahoa.

Writ denied.

SUMMERS, C. J., MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr. and Parish of St. Landry v. TWO O’CLOCK LAND COMPANY, INC., et al.
    No. 63799.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Two O’Clock Land Co., Inc. and Creighton Nall, applying for writ of certio-rari, Third Circuit Court of Appeal. Parish of St. Landry. 365 So.2d 1174.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    Oremus FRUGE v. Joseph Barney DESHOTELS, Sr. Joseph Barney DESHOTELS, Sr. v. Oremus FRUGE
    No. 63683.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Joseph Barney Deshotels, Sr. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Evangeline. 364 So.2d 258; 364 So.2d 263.

Writ denied. The result is correct.


text:
    Luana Thiel JAMBOIS v. Richard GREENE, Eric Greene, et al.
    No. 63630.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Luana Thiel Jambois applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Freddie Lee WALKER v. Gene SCROGGINS, Director, Caddo Correctional Institute.
    No. 63545.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Freddie Lee Walker applying for writ of habeas corpus. Caddo Parish.

Writ denied. Relator’s sentences are concurrent.


text:
    STATE of Louisiana ex rel. James WILLIAMS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63534.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re James Williams applying for remedial writs of habeas corpus, mandamus and/or other remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Ceaser SHANNON v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63528.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Ceaser Shannon applying for writ of certiorari. Parish of Orleans.

Writ denied. Moot.


text:
    Patricia Ann ROUNDTREE, widow of Elmo C. Burmaster, Jr. v. TECHNICAL WELDING AND FABRICATION COMPANY, INC., and Ed Ehrmann and Hunt-Wesson Foods, Inc.
    No. 63526.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Patricia Ann Roundtree, widow of Elmo C. Burmaster, Jr., applying for certio-rari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 364 So.2d 1325.

Denied. The result is correct.


text:
    STATE of Louisiana v. Dana BRADSHAW.
    No. 63458.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Dana Bradshaw, applying for remedial writs. Parish of Morehouse.

Writ denied. The Department of Corrections has re-calculated the petitioner’s good time, in accordance with the return furnished to this Court and a copy of which is transmitted to relator. The matter is therefore moot.


text:
    STATE of Louisiana ex rel. William BIRTHA v. STATE of Louisiana, Honorable Judge Matthew S. Braniff.
    No. 63457.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re William Birtha, applying for writ of mandamus. Orleans Parish.

Denied. The matter is moot having been acted upon in State ex rel Birtha v. Henderson, Warden, # 54,215 on the docket of this Court.


text:
    STATE of Louisiana ex rel. Rudolph WILSON, Sr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, Criminal District Court, Parish of Orleans, Section “G”, Hon. Frank J. Shea, Judge.
    No. 63119.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Rudolph Wilson, Sr., applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Hubert HOWARD v. Hayden J. DEES, Warden.
    No. 63804.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Hubert Howard applying for writ of certiorari. Parish of Orleans.

Writ granted in part, denied in part. Relator’s application is transferred to the trial court for reconsideration of charge of excessively imposed sentence in light of R.S. 15:529.1. In all other particulars, the application is denied.


text:
    Adam DUFRENE et al. v. DIXIE AUTO INSURANCE CO. et al.
    No. 63787.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Adam Dufrene, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 364 So.2d 1067.

Granted. 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:
    TENNECO OIL COMPANY v. Fred L. HOUSTON et al., Ellis Harp., Jr., et al.
    No. 63777.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Ellis Harp., Jr., Anether Harp Hall, Dorether Harp, and Jimmy Ray Harp, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 364 So.2d 1056.

Granted. 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:
    William A. SMITH et al. v. W. VIRGINIA OIL AND GAS COMPANY et al.
    No. 63766.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re W. Virginia Oil & Gas Co., Inc. and Roy M. Teel, Roy M. Teel, Jr., Peter M. Herbst & Margaret Teel Herbst applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Ouachita. 365 So.2d 269.

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


text:
    John H. WHITE d/b/a White Construction & Equipment Rental Company v. MARTIN GMC TRUCKS, INC., et al. MARTIN GMC TRUCKS, INC. v. Homer WHITE d/b/a White Construction & Equipment Rental Company.
    No. 63794.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re General Motors Corp. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Calcasieu. 359 So.2d 1094; 359 So.2d 1102.

Writ denied.

DENNIS, J., would grant the writ.


text:
    John H. WHITE d/b/a White Construction & Equipment Rental Company v. MARTIN GMC TRUCKS, INC. et al. MARTIN GMC TRUCKS, INC. v. Homer WHITE d/b/a White Construction & Equipment Rental Company.
    No. 63793.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Martin GMC Trucks, Inc. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Calcasieu. 359 So.2d 1094; 359 So.2d 1102.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana in the Interest of Faye Doris McCONNELL.
    No. 63771.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Faye Doris McConnell applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Jackson. 364 So.2d 1054.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    Eric Leroy MAYS and Gloria Johnson Mays v. AMERICAN INDEMNITY CO., and William R. Thomas, and AMERICAN INDEMNITY CO. and George L. Thomas v. Eric Leroy MAYS and State Farm Fire & Casualty Co.
    No. 63774.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re George Thomas, William Thomas and American Indemnity Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 365 So.2d 279.

Writ denied.

DIXON, J., would grant the writ.


text:
    A. B. GREER v. Gladney (Dock) HATTER et al.
    No. 63775.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re A. B. Greer applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Claiborne. 364 So.2d 1050.

Writ denied.

TATE and BLANCHE, JJ., would grant the writ.


text:
    Maggie Ebarb BROWN et al. v. ALLEN SANITARIUM, INC., et al.
    No. 63776.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Maggie Ebarb Brown, et al. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 364 So.2d 661.

Writ denied. Result is correct.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Earline FITCH v. Delbert EVANS et al.
    No. 63778.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Earline Fitch applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Ouachita. 364 So.2d 1309.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    David W. PERRET, Sr. v. CITY OF WESTWEGO.
    No. 63779.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re David W. Perret, Sr. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 364 So.2d 1070.

Writ denied.


text:
    Mrs. Inez L. GREEN, Individually and on behalf of the minor child, Nathaniel Green v. ORLEANS PARISH SCHOOL BOARD.
    No. 63768.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Mrs. Inez L. Green, etc. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 365 So.2d 834.

Denied.


text:
    HERO LANDS COMPANY v. BOARD OF COMMISSIONER FOR the LAFOURCHE BASIN LEVEE DISTRICT et al.
    No. 63762.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Hero Lands Company, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 366 So.2d 593.

Writ denied.

SUMMERS, C. J., dissents from the refusal to grant the writ.

MARCUS, J., would grant the writ.


text:
    Sonja RANSON v. ORLEANS PARISH SCHOOL BOARD.
    No. 63745.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Orleans Parish School Board, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 365 So.2d 937.

Denied.


text:
    Jimmy THRASHER v. Johnny LEGGETT d/b/a Johnny Leggett’s Cajun Country.
    No. 63788.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Jimmy Thrasher, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 365 So.2d 1149.

Writ granted. 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.