author: SMITH, Judge.

text:
    ITT-COMMUNITY DEVELOPMENT CORPORATION, Appellant, v. HALIFAX PAVING, INC., Appellee. ITT-COMMUNITY DEVELOPMENT CORPORATION, Petitioner, v. HALIFAX PAVING, INC., Respondent.
    Nos. FF-361, FF-435.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1977.
    Rehearing Denied Oct. 18, 1977.

      Mark Hicks, of Blackwell, Walker, Gary, Powers, Flick & Hoehl, Miami, for appellant.
    Lawrence 0. Sands, Daytona Beach, for appellee.
   SMITH, Judge.

ITT-Community Development Corporation presents an interlocutory appeal in FF-361 from a circuit court order relating to venue and a petition for common law certiorari in FF-435 to review the same court’s order denying petitioner’s motion to stay proceedings pending disposition of a case earlier and still pending between the same parties, involving similar issues, in United States District Court for the Middle District of Florida.

The interlocutory appeal will be dismissed. ITT’s motion for change of venue from Flagler County asserted in effect that appellant is so odious to the inhabitants and prospective jurors in Flagler County that a fair trial is impossible there on issues pertaining to appellant’s Palm Coast development. Affidavits of appellee Halifax filed in opposition to the motion for change of venue colorably show a possibility of impaneling a fair and impartial jury. The trial court therefore did not err in denying the motion without prejudice to renewal should reasonable attempts to impanel an impartial jury at trial be unsuccessful. See Florida East Coast Railway Co. v. Hardee, 167 So.2d 68 (Fla.3d DCA 1964); Stephens v. Bradley, 24 Fla. 201, 3 So. 415 (1888); and Williams v. Dickenson, 28 Fla. 90, 9 So. 847 (1891).

Nor did the trial court depart from the essential requirements of law by denying ITT’s motion for stay pending disposition of the federal action. Disposition of the federal action would unquestionably dispose of the issues in this case; and the federal action was, as asserted by ITT, previously pending. Florida litigation need not be abated because of a previously-filed action in a federal district court in Florida. State ex rel. Dos Amigos, Inc. v. Lehman, 100 Fla. 1313, 131 So. 533 (1930). Nevertheless, Wade v. Clower, 94 Fla. 817, 826, 114 So. 548, 551 (1927) suggests that a stay of the action last filed is and should be “the usual practice” in the interests of state-federal comity. See also State ex rel. Sherrill v. Milam, 116 Fla. 492, 156 So. 497 (1934); and Jorge v. Antonio Co., 151 So.2d 467 (Fla.2d DCA 1963). The United States Court of Appeals for the Fifth Circuit, making no distinction between abatement and stay, has held unequivocally that a federal district court action would be neither stayed nor abated pending disposition of a previously-filed Florida state court action involving the same issues and parties. Ermen- trout v. Commonwealth Oil Co., 220 F.2d 527 (5th Cir. 1955). We conceive that a Florida trial court has power to weigh the circumstances for and against a stay, including as here the unlikelihood of early disposition of the federal trial. The trial court did not err in denying the stay.

We have not overlooked Armstrong v. Romanach, 165 So.2d 817 (Fla.3d DCA 1964). The District Court of Appeal was there concerned with its “power to stay” proceedings in Florida litigation pending the conclusion of foreign litigation, and did not intimate the trial court would have been without authority, on a proper showing, to deny a stay. No motion for stay was there presented to the trial court, which had simply entered summary judgment for defendants in an action on a note, on the ground that plaintiff had effectively elected an exclusive remedy by repossessing pledged chattels in Texas and prosecuting a Texas foreclosure action. The District Court of Appeal found summary judgment inappropriate but stayed further prosecution of the Florida action, holding that “It will be time aplenty when the Texas proceedings have been concluded for the court . to decide the question of election of remedies and other matters which may be raised by the parties.” In the case before us, the motion to stay was submitted to the trial court, which had power to and did determine the stay issue in the light of federal court docket congestion in civil cases, concerning which representations were made to the trial court by counsel.

The interlocutory appeal is DISMISSED and the petition for common law certiorari is DENIED.

MILLS, Acting C. J., and ERVIN, J., . concur.


source: Caselaw Access Project

author: PER CURIAM. MILLS, Judge,

license: Public Domain

text:
    In re the MARRIAGE OF Gerald V. MASON, husband, and Gloria Mason, wife.
    No. FF-298.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1977.
    Rehearing Denied Oct. 21, 1977.
    Joseph A. Sheffield of Roberts & Sheffield, Marianna, Frank A. Graham, Jr., Tallahassee, for appellant.
    J. Paul Griffith, Marianna, for appellee.
   PER CURIAM.

The fixing and awarding of alimony is seldom subject to mathematical exactitude. Although we are of the view, sub judice, that the award of the learned trial judge was indeed generous we do not find that such generosity was to such a degree as to constitute the award an abuse of discretion.

The judgment here appealed is therefore affirmed.

The motion of the appellee for attorney’s fees incident to this appeal is denied.

IT IS SO ORDERED.

McCORD, C. J., and BOYER, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. In my judgment the trial court abused its discretion in awarding the wife as lump sum alimony the entire amount of the material accumulations of the marriage.

I join with the majority in denying the motion of appellee for attorney’s fees.


author: ALDERMAN, Chief Judge.

text:
    In the Interest of W. J. N., a child.
    No. 76-1513.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler and Stuart A. Young, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

W. J. N., age sixteen, appeals his adjudication of delinquency for burglary. The issue is whether appellant’s confession, obtained after the person taking him into custody had determined that he should be detained, but before he was delivered to the appropriate intake officer, should be suppressed. Miranda warnings were given; the evidence is sufficient to establish the voluntariness of the confession, as well as parental consent; and the validity of the arrest is not challenged. The determinative question is whether the confession must be suppressed because of an alleged violation of Section 39.03(3)(a), Florida Statutes (1975). The relevant section of this statute provides that if the person taking a child into custody determines that the child should be detained, he shall “without unreasonable delay, deliver the child to the appropriate intake officer.” We find no error and affirm the trial court’s denial of appellant’s motion to suppress.

Appellant was arrested at his home at about 6:00 A.M. He was first taken to a “command post” set up by the sheriff’s office in front of the North Broward Hospital; then, between 8:00 and 8:30 A.M., with four or five other boys who had also been arrested, he was transported to the sheriff’s road patrol office on the eighth floor of the Broward County Courthouse. There he was fingerprinted and photographed, and at about 9:30 A.M. he was questioned for about fifteen minutes. At that time he confessed his involvement in the burglary. Shortly thereafter he was delivered to the appropriate intake officer of the Division of Youth Services.

Appellant relies on In Interest of A. J. A., 248 So.2d 690 (Fla. 3d DCA 1971) and Roberts v. State, 285 So.2d 385 (Fla.1973). These cases, however, are no longer applicable because they deal with an earlier version of Section 39.03(3), which provided that the person taking a child into custody “shall, without delay for the purpose of investigation or any other purpose, deliver the child, by the most direct practical route, to the court of the county or district where the child is taken into custody.” The explicit mandatory language of the former Section 39.03(3) allowed for no delay for any purpose. The confessions in A. J. A. and Roberts were therefore suppressed.

Appellant also relies upon the more recent case of B. M. v. State, 337 So.2d 423 (Fla. 3d DCA 1976), which contains broad language to the effect that the current Section 39.03(3) is a legislative directive to the courts and other law enforcement agencies that juveniles shall be treated differently from other suspected criminals in that they shall not be taken to a police station or jail for interrogation. This statement is dicta. The court in B. M. v. State, supra, did not hold that a child’s confession must be suppressed because he was taken to a police station for interrogation. The court did hold that the reasonableness of the delay in transporting the child to Youth Hall and the effect such delay may have had on him insofar as influencing him to confess, were questions for the trier of fact to decide in making his determination of volun-tariness. The case was remanded to the trial court to rule on the voluntariness of the child’s confession. Subsequently the trial court found that the confession was voluntary and that the delay in transportation did not vitiate the voluntariness of the confession. The Third District then affirmed the adjudication of delinquency. B. M. v. State, 341 So.2d 801 (Fla. 3d DCA 1977).

Section 39.03(3) has also been considered in the recent case of In Interest of R. L. J., 336 So.2d 132, 137 (Fla. 1st DCA 1976). The First District, after noting the legislative change, concluded that the legislature thus removed any statutory impediments to juvenile custodial interrogation which do not offend the United States and Florida Constitutions. We agree with this analysis and reject appellant’s contention that his confession must be suppressed. The booking procedures and the interrogation at the sheriff’s office, the resulting delay in delivering appellant to the intake officer, and the effect such delay may have had on appellant, insofar as it relates to the voluntariness of his confession, are factors to be considered by the trial court in making its determination of voluntariness; they do not, however, require that the confession be suppressed in any event. See also Doerr v. State, 348 So.2d 938 (Fla. 2d DCA 1977).

AFFIRMED.

DOWNEY and LETTS, JJ., concur.


text:
    James R. PENNY, Appellant, v. James S. LOMBARDO, Appellee.
    No. 77-123.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.

      Thomas A. Bratten, West Palm Beach, for appellant.
    No appearance for appellee.
   ALDERMAN, Chief Judge.

The plaintiff, who was the prevailing party before the trial court, appeals the award of costs in favor of the defendant. The plaintiff sued for conversion of an automobile, and the defendant counterclaimed for breach of contract; the jury’s verdicts awarded the plaintiff $1,000.00 damages and nothing to the defendant. Each party moved to tax costs, $238.50 for the plaintiff and $621.54 for the defendant. The trial court found that “both parties should recover their taxable costs.” The defendant was awarded net taxable costs of $215.54 and in the final judgment the plaintiff’s $1,000.00 jury award was reduced to $784.46.

We reverse. Section 57.041(1), Florida Statutes (1975), provides: “The party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment . . . In the present case the plaintiff recovered judgment and was the prevailing party. The defendant won nothing; therefore, there was no basis for him to recover his costs from the plaintiff.

Reversed and remanded with directions that final judgment be entered in favor of the plaintiff for the full amount of his verdict and costs.

REVERSED and REMANDED with directions.

CROSS and DAUKSCH, JJ., concur.


author: DOWNEY, Judge.

text:
    Charles N. SMALLWOOD, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, Respondent.
    No. 77-192.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.

      Susan A. England, of People’s Legal Action, Inc., Winter Garden, for petitioner.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and James R. Parks, Miami, for respondent-Florida Dept, of Commerce Div. of Employment Security.
   DOWNEY, Judge.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission affirming the decision of an appeals referee denying unemployment compensation benefits to petitioner.

Briefly, the evidence reflected that petitioner was a long distance truck driver for his employer for some ten years from 1966 until 1976. In 1970 petitioner had a cataract operation on one eye and in 1971 a like operation on the other eye. Thereafter petitioner was utilized on local deliveries and warehouse work with the understanding that if an emergency developed he would drive the longer trips.

Just prior to his discharge petitioner was directed to drive an overnight trip and he refused. He testified that he refused because his peripheral vision had deteriorated since the cataract operation and he felt he was not capable of the kind of driving required to operate large trucks on the open highway. This refusal brought about his discharge.

The appeals referee found that petitioner was discharged for misconduct connected with his work within the meaning of Section 443.06(1), Florida Statutes (1975).

In the final analysis the issue before the appeals referee was whether petitioner was justified in refusing to follow his employer’s instructions to drive the overnight trip. If as petitioner testified, his vision was defective thus making operation of a large truck in highway traffic dangerous to himself and others, then it would certainly appear petitioner was justified in refusing to undertake the trip. On the other hand, if petitioner’s sight was not defective then his refusal would constitute misconduct under the statute and the order denying benefits was proper.

As stated previously, petitioner testified his peripheral vision was poor, and he felt incapable of driving large trucks on the highway for extended periods. No evidence to the contrary was adduced. The closest respondent came to contradicting petitioner’s testimony was a reference to petitioner having passed a vehicle lessor’s periodic eye test for drivers in 1974. Since the unemployment compensation act is to be construed liberally in favor of the claimant, Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla.3d DCA 1963), we conclude the evidence adduced in this case is insufficient to support the conclusion of the appeals referee and the Industrial Relations Commission.

However, the issue concerning petitioner’s peripheral vision and his ability to perform the task demanded by his employer can be readily determined by medical evidence. Accordingly, pursuant to the statutory authority provided in Section 120.-68(13)(a)l, Florida Statutes (1975), we quash the order under review and remand the cause to the Industrial Relations Commission with directions to remand the cause to the appeals referee for the purpose of receiving additional evidence as to petitioner’s ability to drive on the highway with particular reference to his vision.

ANSTEAD and LETTS, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    John HUFF, Appellant, v. STATE of Florida, Appellee.
    No. 77-5.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1977.
    Rehearing Denied Oct. 18, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant, John Huff, was charged with robbery with a deadly weapon in violation of Section 812.13, Florida Statutes (1975). He was tried by a jury and convicted of the offense with which he was charged. At trial the evidence introduced showed that the weapon used in the robbery was a closed pocketknife. After a hearing, subsequent to the trial, appellant was declared to be a habitual felony offender and sentenced to life in prison with forty-eight days credit for time served.

On this appeal appellant raises the question of whether the trial judge committed reversible error in failing to instruct the jury on the offense of robbery with a weapon pursuant to Fla.R.Crim.P. 3.150. We reverse and remand to the trial court for a new trial.

Appellant’s counsel made a timely request that the trial court instruct the jury on the crimes of robbery with a deadly weapon, robbery with a weapon, and robbery. The trial judge did instruct the jury on robbery with a deadly weapon and robbery but refused to instruct on robbery with a weapon. A trial judge is required to give an instruction when timely requested on necessarily lesser included offenses of the crime charged. State v. Terry, 336 So.2d 65 (Fla.1976). Thus, if robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon, as we believe it is, it follows that the trial court erred in failing to give appellant’s requested instruction.

In Brown v. State, 206 So.2d 377, 382 (Fla.1968), the Florida supreme court defined a necessarily lesser included offense as “an essential aspect of the major offense. Under this definition it is clear that robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon. It would be manifestly impossible to prove robbery with a deadly weapon without proving robbery with a weapon since obviously a deadly weapon is a weapon. In this case the evidence concerning the closed pocketknife would prove the presence of a weapon as well as the presence of a deadly weapon. Furthermore, the robbery statute clearly delineates three stages or degrees of robbery in descending order: robbery with a deadly weapon, robbery with a weapon, and robbery without a weapon. Section 812.13(2), Florida Statutes (1975).

For the reasons assigned above we hold that the trial court committed error in refusing to give the instruction on robbery with a weapon and reverse. Lomax v. State, 345 So.2d 719 (Fla.1977).

In view of our decision we need not reach the other two issues raised by appellant.

REVERSED and REMANDED for a new trial.

GRIMES and OTT, JJ., concur.


author: PER CURIAM.

text:
    H. W. ROBINSON, d/b/a John Ringling Towers and Security Insurance Company, Petitioners, v. Marcia Jean KLEIN, Respondent.
    No. 77-752.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1977.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker P.A., St. Petersburg, for petitioners.
    No appearance on behalf of respondent.
   PER CURIAM.

In view of several recent decisions of this court, the petitioners make a strong argument for the proposition that an affirmative defense was erroneously stricken from their answer. However, they cannot obtain relief by way of certiorari because there remains available to them a full, adequate and complete remedy through appeal after final judgment. Employers Fire Insurance Company v. Blanchard, 234 So.2d 381 (Fla. 2d DCA 1970); Marlowe v. Ferreira, 211 So.2d 228 (Fla. 2d DCA 1968).

Certiorari denied.

HOBSON, A.C.J., and GRIMES and OTT, JJ., concur.


text:
    Ronnie Joe VANN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1666.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court; while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


text:
    William E. DIECKBRADER, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-99, 77-240.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment is affirmed but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), .Florida Statutes (1975); Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). The appellant does not have to be present at resen-tencing.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


text:
    David Randall PURVIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-353.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1977.
    Jack 0. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant entered a plea of nolo conten-dere to the charge of aggravated battery and was placed' on three-years probation. After a hearing in which appellant’s probation was properly revoked, he was adjudicated guilty of aggravated battery and sentenced to ten years in prison. The judgment and sentence, however, is inconsistent with the trial court’s prior finding that appellant was guilty of aggravated battery in that it reflects appellant was adjudicated guilty of aggravated assault.

Remanded for correction of the judgment and sentence to indicate appellant was adjudicated guilty of aggravated battery; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Stafford W. THOMPSON, a/k/a Steve Thompson, Appellant, v. STATE of Florida, Appellee.
    No. 77-515.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1977.
    Henry T. Swann, III, of Brewton & Council, P. A., Dade City, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Benjamin Gilbert KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 77-770.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1977.
    Jack O. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


author: McCORD, Chief Judge.

text:
    Eugenia P. DUNN, as Personal Representative (Administratrix) of the Estate of Walter B. Dunn, Appellant, v. The UPJOHN COMPANY, a foreign corporation, Thomas Vancel, d/b/a Shepherd’s Drug Store, and Norfolk & Dedham Mutual Fire Insurance Company, a foreign corporation, Appellees.
    No. EE-291.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1977.
    Eric A. Lanigan of Maher & Overchuck, Orlando, for appellant.
    William M. Smith of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, and Frank T. Holt of Alexander, Vann & Lilly, Thomasville, Ga., for appellees.
   McCORD, Chief Judge.

This appeal is from an order of the trial court dismissing the cause against appellees Thomas Vancel, d/b/a Shepherd’s Drug Store, and his insurer Norfolk & Dedham Mutual Fire Insurance Company. The issue below and here on appeal is whether or not the court has jurisdiction over Vancel who is a nonresident of the State of Florida. He was served with process under Florida’s long-arm statute, § 48.193(l)(f)2, Florida Statutes (1975). By its order, the trial court ruled that it did not have jurisdiction over Vancel. We agree and affirm.

Eugenia P. Dunn, individually and as personal representative of the Estate of Walter B. Dunn, deceased, seeks damages against the Upjohn Company, manufacturer of a drug called Celocin and against the appellees mentioned above. There is no question raised on this appeal as to the court’s jurisdiction over the Upjohn Company. Appellant alleged that the drug was a defective product; that Upjohn failed to give adequate warning of its side effects; that Celocin was a prescription drug which appellee Vancel sold to the decedent Dunn, negligently attaching a label to the prescription indicating that it was for decedent when in fact it was prescribed by the prescribing physician for the decedent’s daughter; that decedent’s death was caused by his consumption of the drug.

Decedent was a resident of Monticello, Florida, but owned and operated a store in Thomas County, Georgia. Decedent telephoned Vancel and advised him that he had the prescription for Celocin and would give the prescription to him when the drug was delivered to decedent at his store. Upon seeing the prescription when it was received at Vancel’s store, Vancel telephoned decedent and advised that the prescription was improperly labeled because it was for decedent’s daughter. Vancel typed and sent a proper label to decedent at his store.

The prescription for the drug was made for decedent’s daughter by Dr. T. H. Gates, a Thomas County, Georgia, dentist. The complaint alleged that the drug was consumed by decedent in the ordinary course of commerce and use and that Vancel had on numerous other occasions sold drugs and processed prescriptions for decedent and other Florida residents. Vancel’s affidavit sets forth that he is a pharmacist licensed to practice in Georgia; that he does business in Thomas County, Georgia, and has consummated no sales in Florida nor solicited any business in Florida; that he has not advertised in Florida and has made no deliveries in Florida; that decedent was a customer of his but that any purchases made by him were made in Georgia and delivered to him in Georgia; that he was billed at his store in Thomas County, Georgia.

§ 48.193, Florida Statutes (1975), provides in pertinent part as follows:

“(1) Any person, whether or not a citizen or resident of this state, who . does any of the acts enumerated in this subsection thereby submits that person . to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
* * # * * *
(f) Causes injury to persons within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
sf: sfc # sfc * S{{
2. Products . . . processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.”

Were we to hold that the above statute applies to this case, such would constitute an unconstitutional application thereof. The United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945), enunciated the following proposition of law:

“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad responden-dum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

Subsequent decisions of various courts have turned upon the question of whether or not the defendant had minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the United States Supreme Court referred to International Shoe Company v. Washington and said:

“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

In Wright v. Yackley, 459 F.2d 287 (9 Cir. 1972), the United States Court of Appeals, Ninth Circuit, held that an Idaho court did not have jurisdiction over a South Dakota physician who gave a patient a prescription which was eventually filled in Idaho and harmed the plaintiff because the court considered that in the case of personal services, the place where the services are rendered is the critical location. The court also said that it considered public policy would be ill served if a doctor could be forced to defend wherever a patient may travel. While we consider that the filling of a prescription by a pharmacist is more in the nature of processing a product than it is a personal service, a pharmacist who fills a prescription in a foreign state and delivers it to the recipient in that state cannot reasonably be said to have purposefully availed himself of the privilege of conducting activities within the forum state thus invoking the benefits and protections of the forum state’s laws. This is true even though the pharmacist may know that the recipient is a resident of the forum state.

We agree with the aforementioned public policy statement of the United States Court of Appeals, Ninth Circuit, in Wright and consider that it would logically apply as well to a pharmacist as to a doctor. If we were to rule otherwise, any tourist visiting Florida from another state (even such a far away state as Alaska or Hawaii) for whom a prescription is filled by a Florida pharmacist could force the pharmacist to defend a suit in the visitor’s home state if the pharmacist had reason to believe that such person was not a resident of Florida and if the visitor’s home state had a long-arm statute like the Florida statute.

In In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (6 Cir. 1972), the United States Court of Appeals, Sixth Circuit, said:

“An essential element of such ‘fairness’ in our society has always been that a person is not asked to bear a special burden (such as defending in a foreign forum) unless he has done something in a purposeful manner or with such knowledge as to make his deeds the equivalent of purposeful action. The Hanson v. Denck-la requirement is simply designed to avoid the situation where the ‘unilateral activity’ of the plaintiff can drag an unsuspecting and unwilling defendant into a foreign forum.”

Under the circumstances of the case sub judice, we hold that appellee Vancel did not have the requisite minimum contacts with the State of Florida to satisfy the due process requirements of International Shoe Co. v. Washington and Hanson v. Denckla.

Affirmed.

RAWLS and SMITH, JJ., concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Harry ROBERTS.
    No. 56952.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Garland R. Rolling, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Wessel, Louise S. Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
   On Remand from the Supreme Court of the United States

PER CURIAM:

Defendant Harry Roberts was charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, he was found guilty as charged and was sentenced to death. This Court affirmed his conviction and sentence on appeal, rejecting defendant’s contention that the death penalty provision of La.R.S. 14:30 was unconstitutional. 331 So.2d 11 (La.1976). The Supreme Court of the United States granted defendant’s petition and reversed our judgment “insofar as it upholds the death sentence upon petitioner.” Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977). The case was remanded to this Court with the following mandate:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on June 6, 1977, by this Court that the judgment of the Supreme Court of Louisiana in this cause be reversed with costs, insofar as it upholds the death sentence, and that this case be remanded to the Supreme Court of the State of Louisiana for further proceedings not inconsistent with the opinion of this Court.
NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

In accordance with this mandate, the death penalty imposed on defendant must be annulled and set aside. For the reasons set forth in State v. Jenkins, 340 So.2d 157 (La.1976), we have concluded that the appropriate penalty to be imposed upon a valid conviction for first degree murder is the most severe constitutional penalty established by the legislature for criminal homicide at the time the offense was committed. La.R.S. 14:29 et seq. In the instant case, the offense was committed on February 26, 1974, at which time the most severe valid penalty for homicide was imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. See La.R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1.

Accordingly for the reasons assigned in our original opinion, defendant’s conviction is affirmed, but the death penalty is annulled and set aside, and the case remanded to the district court with instructions to resentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.


author: TATE, Justice. SANDERS, Chief Justice SUMMERS, Justice

text:
    Hayes WILLIAMS, Wardell Donahue, James C. Jones, Spencer Richardson, John D. Smith, et al., Plaintiffs-Relators, v. STATE of Louisiana, Governor Edwin Edwards, C. Murray Henderson, Warden of Angola, Mrs. Elayn Hunt, Director of Louisiana Department of Corrections, Defendants-Respondents.
    No. 59254.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Dissenting Opinion Oct. 11, 1977.

      Luke J. Fontana, D. Brian Soignier, New Orleans, for plaintiffs-applicants.
    William J. Guste, Jr., Atty. Gen., Michael C. Barron, Staff Atty., Baton Rouge, for defendants-respondents.
   TATE, Justice.

The district court upheld the defendants’ exception and dismissed this suit insofar as brought as a class action. We granted cer-tiorari, 342 So.2d 868 (La.1977), to review the district court’s ruling that the class action remedy, otherwise appropriate, was not available because of the variances in the damages resulting to each individual from the mass tort alleged.

The petition alleges: A noon meal served to the inmates of the state penitentiary contained contaminated food substances. The contamination resulted from negligent and unsanitary kitchen preparation and conditions. Some 600 prisoners thereby suffered severe attacks of food poisoning, with stomach cramps, diarrhea, and vomiting. The interrogatories at issue in the proceedings indicate that the names of those prisoners who complained of illness resulting from the poisoning may be ascertained from the prison infirmary records.

The petition alleges that the incident occurred on June 22, 1975, some six months prior to the date the suit was filed. Five inmates, alleging that they will fairly insure the adequate representation of a class of persons too numerous to be practicably joined as parties, seek to institute this class action. They pray to recover individual damages on behalf of each of the approximately 600 inmates who suffered similar damages as a result of the same tort for which the defendants are responsible.

As is set forth more fully below, we find that the trial court’s discretion was erroneously exercised to deny, for the reasons stated by that court, the class action remedy as available in the present litigation.

The Louisiana Class Action

The class action of the Louisiana Code of Civil Procedure, Articles 591-97, is adapted from Federal Rule of Civil Procedure 23 as originally promulgated in 1937. Official Revision Comment (b), La.C.Civ.P. art. 591. In framing Article 591, the redactors deliberately rejected the hybrid and spurious class actions of the federal rule. The article authorizes only the true class action. Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975); La.C. Civ.P. art. 591, Official Revision Comment (c).

Articles 591(1) and 592 are pertinent to our present query. They show that, in sanctioning class actions, the legislature has imposed the following requirements: (1) a class so numerous that joinder is impracticable; (2) the joinder as parties to the suit of one or more parties who are (a) members of the class, and (b) so situated as to provide adequate representation for absent members of the class; and (3) a “common character” between the rights of the representatives of the class and the absent members of the class.

When (as here) the first two requirements are met, the trial court’s inquiry (in its determination of whether to exercise its discretion to allow or disallow the class action remedy sought) centers upon whether “the character of the right sought to be enforced is common to all members of the class”. La.C.Civ.P. art. 591(1).

In Stevens, cited above, we noted that, even though the first two requirements are met, the “existence of a common question of law or fact does not by itself justify a class action” as involving a common character of the right to be enforced. 309 So.2d 151 (italics now supplied). We there noted that certain functional and pragmatic factors should be taken into consideration by the trial court, 309 So.2d 150-151, in aid of its ultimate determination of whether or not “the class action will be clearly more useful than other available procedures for definitive determination of a common-based right, ... in the interests of the parties (including both the class and the opponents) to it) and of the efficient operation of the judicial system.” 309 So.2d 151.

We summarized in Stevens the intertwined values of effectuating substantive law, judicial efficiency, and individual fairness involved in allowing or disallowing a class action, as follows, 309 So.2d 151:

“In determining how the legislature intended the courts to define and apply the concept of allowing a class action to enforce rights with a common character, we are mindful of the basic goals or aims of any procedural device: to implement the substantive law, and to implement that law in a manner which will provide maximum fairness to all parties with a minimum expenditure of judicial effort. Implicit, then, in decision that rights are of a common character is a consideration of the extent to which a clear legislative policy might be thwarted, or hampered in its implementation, by the lack of availability of the class action device.
“But this does not end the inquiry. Fairness to the parties demands at the least that the relationship between the claims of members of the class should be examined to determine whether it would be unfair to the members of the class, or to the party opposing the class, to permit separate adjudication of the claims. In determining whether it would be unfai,-to require separate adjudications, for instance, the courts should consider the precedential value of the first decision, as well as the extent of injustice that will be produced by inconsistent judgments in separate actions. Another factor to be considered, for example, is the size of the claims of the absent members of the class, for the greater the claim, the greater the interest of its owner in prosecuting it in a separate action.”

Criteria for Allowance of a Class Action Here Met

Under the circumstances here shown, the values above set forth clearly favor allowance of a class action. The pragmatic criteria suggested by Stevens for the determination of the “common character” of the rights asserted for the class, 309 So.2d 150-51, predominantly indicate that the class action is superior to other procedural methods available for the fair and efficient adjudication of the controversy, since the class action is otherwise appropriate because of the numerous members of the class and because of the adequate representation assured by the plaintiffs instituting this class action.

The plaintiffs allege that approximately 600 prisoners sustained similar if not identical attacks of food poisoning arising from a single tortious incident. Similar if not identical damages, small in nature, were sustained by each. The evidence as to the tort itself must be identical for each claim. The medical evidence in most if not all of the claims will be founded in the same source, the prison infirmary and medical records.

Based on these circumstances, we find the class action allowable. The criteria we deem decisive include:

(1) Six hundred separate suits involve the danger of inconsistent determinations and of earlier separate adjudications with prejudicial effect upon subsequent separate litigation. See criteria 1(A), Stevens at 309 So.2d 151. Further, the interested parties appear to be so numerous that the courts would be unduly burdened by their separate suits or by their joinder or intervention by formal pleadings in non-class actions separately brought.

(2) The poverty and isolation of the prisoners, and the small amount of each individual’s claim, pose a serious threat to the loss of individual substantive rights if the class action is not allowed. See Stevens criteria 1(B).

(3) The defendants resist liability for reasons generally applicable to the entire class. See Stevens criteria 2.

(4) The questions of law or fact common to the members of the class predominate over any questions affecting only individual members. See Stevens criteria 3. The plaintiffs allege that the entire class is similarly situated, and the defendant does not raise any special defenses against some members of the class which are not raised against others. In fact, the nature of this case suggests that such individual defenses as contributory negligence and assumption of the risk are wholly inapplicable. Not only do common questions predominate, there simply are no competing individual issues of law raised by the pleadings. Further (see also discussion of “Mass Torts” below), as we noted in Stevens, “that different recoveries are sought, based upon the same factual transaction and same legal relationship, was not intended to defeat a class action.” 309 So.2d 149.

(5)The class action is the most appropriate procedural vehicle to process this dispute fairly and efficiently, not only because of the above factors, but also by reason of the following procedural factors:

(a) Due to the smallness of the recovery allowable to each plaintiff, as well as because of the difficulty of the inmates’ otherwise securing legal representation, no substantial interest adverse to allowing a class action exists in favor of individual control by members of the class of separate action. See Stevens criteria 3A.

(b) The extent and nature of litigation already commenced by others concerning the controversy is not sufficient to indicate that allowance of a class action will defeat the purpose of the remedy to promote judicial economy and reduce the possibility of multiple litigation. See Stevens criteria 3B. In general, the lower the number of additional suits filed, the more useful is the class action. Here, although more than 600 inmates were allegedly affected by the contaminated food, only ten have filed suit in their individual behalf. A substantial number, if not all, of the remaining members are apparently content to have these representatives prosecute their claims. Hence, the class action device is highly useful here; in one action, the court can process the claims of all but about 1.5% of the persons involved.

(c) The desirability or not of concentrating the litigation of the claims in the particular forum of the class action does not, under these circumstances, present a factor of substantial weight in determining whether or not to allow a class action. See Stevens criteria 3C. The ten individual suits were likewise instituted in the same judicial district. (They, of course, may be consolidated for trial with the present. La. C.Civ.P. art. 1561.)

(d) The lack of difficulty to be encountered in managing the present litigation as a class action is clearly suggestive of allowing it in this case. See Stevens criteria 3D. The location of virtually all the witnesses and members of the class in the same vicinity, as well as the identity of the issue of liability in all claims, will facilitate a prompt,' efficient, and relatively inexpensive single trial on this central issue of the litigation. Due to presence of virtually all members of the class in the same vicinity, minimal problems will be encountered in assuring reasonable notice of incidental episodes in the litigation, as well as in distributing any recovery, if awarded. As compared with other class actions, the present one seems extraordinarily “manageable”.

Variations in Individual Recovery — “Mass Tort”

Our trial brother disallowed the class action principally because the damages to each member of the class might vary considerably. As noted, this circumstance alone does not defeat the class action, see Stevens at 309 So.2d 149.

However, the variation in possible individual awards is properly taken into consideration in the determination of whether or not to allow a class action. In the first place, great differences of individual issues and evidence involve the possibility of fragmentation of the class action in effect into multiple lawsuits, to the prejudice of its manageability and the judicial efficiency contemplated by this procedural device. In the second place, where separate large individual claims are possible, the greater is the interest of the individual owners of the claim to prosecute a separate rather than a class action, and the lesser is the need for a class action to assure legal representation in the enforcement of substantive claims.

For the reasons earlier noted at more length, neither of these considerations justify the denial of a class action in the present case.

It is true that, because of these considerations, the federal advisory committee felt that “A ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for a class action” (italics ours), in recommending the 1966 revision of Federal Rule of Civil Procedure 23. 3 Moore’s Federal Practice, Section 23.01 [10.3].

Even for federal class actions, the observations of the advisory committee have been criticized as functionally unsound, while in mass food poisoning cases arising from a single incident the federal courts have found the class action to be an appropriate procedural vehicle by which to determine liability for and allocation of damages to individual members of the class affected.

In the present circumstances, the nonavailability of a Louisiana class action is thus not suggested by whatever are the pragmatic or federal-jurisdictional reasons which suggest that a federal class action is “ordinarily” inappropriate to determine liability and damages arising from a mass accident. To the contrary, for the reasons previously noted, the present class action seems to be the most appropriate procedural vehicle to determine these numerous minor claims arising from a single incident.

Due Process Requirements—Notice to Members of the Class

In a true class action, the judgment concludes all members of the class, whether formally joined as parties or not. Official Revision Comment (c), La.C.Civ.P. art. 591. Therefore, La.C.Civ.P. art. 597 provides: “A definitive judgment on the merits rendered in a class action concludes all members of the class, whether joined in the action or not, if the members who were joined as parties fairly insured adequate representation of all members of the class.”

Thus, the members of the class historically were bound by the judgment, whether or not they had received actual notice of it. Likewise, since the class action is brought on behalf of all members of the class, its filing interrupts prescription as to the claims of all members of the class, whether they are noticed before or after the prescriptive delay has terminated. 7 Wright & Miller, Section 1800 (1972); 3 Moore’s Federal Practice, Section 23.90[3] (1977 revision).

Nevertheless, despite the lack of any statutory requirement for notice to other members of the class sought to be represented, federal (if not also state) due process requires that at some stage of the proceedings, preferably in the earlier stages of the litigation, all identifiable prospective members of the class be given reasonable notice of the pendency of the litigation and the opportunity to opt out of or join in the class action. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Comment, New Dimensions in the Louisiana Class Action, 36 La.L.Rev. 798, 811-12 (1976). This notice should be “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action * * * ’ Eisen at 417 U.S. 174, 94 S.Ct. 2151, quoting from Mullane.

For reasons relating to judicial efficiency, enforceability of substantive claims, and fairness to the parties, the Louisiana legislature by Articles 591-97 has provided a true class action for those served by the courts of Louisiana. The legislature provided that the class-action judgment would be binding upon all members of the class, although the legislature did not itself provide for (nor prohibit) the notice to members of the class now required by federal constitutional interpretations.

However, the Louisiana courts are constitutionally authorized to issue all writs, orders, and process in aid of their constitutional or legislative jurisdiction. La.Const. of 1974, Art. 5, Section 2. See also La.C. Civ.P. art. 191: “A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”

A Louisiana court is thus authorized to provide for such reasonable notice, under the circumstances, to identifiable members of a class sought to be represented in a class action as will entitle them to avail themselves of or to disclaim representation of their interests by the class action. This power should be exercised by a court in which a class action is properly filed, in order to effectuate both (1) the legislative intention that Louisiana courts hear and determine true class actions, with binding judgment conclusively determining by a single action numerous claims, and also (2) the constitutional due process requirement that all members of the class so bound receive such notice as is appropriate under the circumstances of the pendency of the litigation, including an opportunity to opt out of the class asserted.

The due process requirement of notice does not mandate formal service of process. The notice need only be such as is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane at 339 U.S. 314, 70 S.Ct. 657. As to individual claims of any magnitude, individual written notice may well be required for identifiable members of the class. See Ei-sen. As to others, such means of notice by publication (newspaper, bulletin board, etc.) may suffice as will under the circumstances reasonably apprise those interested of the action. See Mullane.

In the present case, unrepresented members of the class may be readily identified from the answers to the interrogatories as those who made complaints of illness to medical or prison authorities following the tainted meal. Except for those who have filed separate suits (who thus presumably opted out of the class action) or those who have filed notice with the attorneys representing the named class-action plaintiffs, see footnote 4 (who thus have affirmatively selected this class action as the vehicle to present their claims, and a list of whom should be furnished the district court), the trial court upon the remand should provide for notice to each of the unrepresented identified members of the class.

These members should be notified, at. their last known address, of the pendency of the class action and that, unless within a reasonable period to be set by the court (e. g., 30 to 60 days) they notify the court otherwise, their interest in the subject matter of this litigation will be concluded by the judgment rendered in this class action. The written notices need not be mailed; to save expenses of litigation, they may, for instance, be delivered to members of the class within the jurisdiction of the Department of Corrections through administrative channels or by hand-delivery or other reliable informal means of communication.

Decree

For the reasons assigned, therefore, we reverse the dismissal and order the reinstatement as a class action of this suit. We remand it to the district court for further proceedings consistent with the views above set forth. All costs to await the final termination of this suit.

REVERSED AND REMANDED.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents and will assign reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice

(dissenting).

The 1975 decision of this court in Stevens v. Board of Trustees of Police Pension Fund, La., 309 So.2d 144 has been described as “judicial legislation.” Comments, New Dimensions in Louisiana Class Actions, 36 La.L.Rev. 798, 812. In the present case, the majority extends that decision, embracing the spurious class action and adding a provision for service of notice upon members of the class. For the reasons hereinafter assigned, I disagree.

Five inmates of Louisiana State Penitentiary instituted this class action against the State and its officials in damages for more than 600 inmates, alleged to have suffered food poisoning from a meal served at the institution. The district court ruled that the class action was not maintainable under Louisiana procedural law. The Court of Appeal denied writs.

The case poses the question of whether, or not a class action is available to plaintiffs in a mass tort under Louisiana procedural law.

Article 591 of the Louisiana Code of Civil Procedure sets forth the statutory authority for a class action:

“A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
(1) Common to all members of the class; or
(2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.”

Article 591, unchanged since its enactment in the 1960 Louisiana Code of Civil Procedure, has its source in the 1937 Federal Rule of Civil Procedure 23, which provided in pertinent part:

“(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
“(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
“(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
“(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”

Paragraphs (1), (2), and (3) of Federal Rule 23 (1937) are classified as “true,” “hybrid,” and “spurious,” class actions respectively. 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1752 (1972); The Class Action — A Symposium, 1969, 10 B.C.Ind. & Com.L.Rev. 539, at 539.

In framing Article 591, the redactors deliberately rejected the hybrid and spurious class actions of the federal rule. The article authorizes only the true class action. Stevens v. Board of Trustees of Police Pension Fund, La., 309 So.2d 144 (1975); LSA-C.C.P. Art. 591, Official Revision Comment (c).

The true class action embodied in the Louisiana Code of Civil Procedure is a representative action that concludes the rights of absent members of the class. LSA-C. C.P. Art. 597. No notice to the absent members is required or authorized. If recovery is had, the court may award the representative parties reasonable litigation expenses, including attorney’s fees. LSA-C.C.P. Art. 595.

Having concluded that only a true class action is maintainable under Louisiana law, the next determination is whether or not mass tort claims fall within the parameters of a true class action. Since no notice to class members is authorized, the extension of our procedural law beyond the true class action would raise serious constitutional questions. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Comments, New Dimensions in Louisiana Class Actions, 36 La.L.Rev. 798, 811-812.

In Stevens v. Board of Trustees of Police Pension Fund, supra, the main opinion correctly states:

“We should note once again that existence of a common question of law or fact does not by itself justify a class action, even though the parties be too numerous to be joined practicably and even though adequate representation is afforded by the typical member or members of the class who are parties to this suit. To this extent, the criteria of the revised Federal Rule 23 had been rejected by our legislature.” [at p. 151]

Normally, as Article 591 states, the right sought to be enforced must be common to all members of the class or secondary. The term common includes the Louisiana joint right or obligation. See Art. 591, Official Revision Comment (b). The class members’ rights are so closely interrelated that actual notice and an opportunity to be heard are not crucial to concluding the rights of the absent members.

Prior to the 1966 revision of Federal Rule 23, the prevailing rule in the federal courts was that mass tort claims were categorized as spurious class actions, because the rights of the absent class members could not be conclusively determined, and the absent members were not bound by an adverse judgment. Pennsylvania R. Co. v. United States, 111 F.Supp. 80, 90-92 (D.N.J.1953); Airplane Crash — Class Action, 28 A.L.R. Fed. 719 (1976); Note, Mass Accident Class Actions, 60 Cal.L.Rev. 1615 (1972); Note, Procedural Devices for Simplifying Litigation Stemming from a Mass Tort, 63 Yale L.J. 493, 513 (1954).

When the federal class action was liberalized in 1966, the Advisory Committee noted:

“A ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried. Notes of Advisory Committee on Rule 23, 1966 Amendment, 28 U.S.C.A. p. 299 (1972).”

Despite the Advisory Committee’s view, some lower federal courts have maintained class actions in mass tort cases, at least as to specific issues where uniformity of result is certain. See, e. g., Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (D.C., Fla. 1973) aff’d without opinion 507 F.2d 1278 (CA5, Fla.); Anno. Airplane Crash — Class Action, 28 A.L.R.Fed. 719, 711-723. The federal rule, however, requires that “the best notice practicable” be given in all expansive class actions under Federal Rule 23(b)(3). See Federal Rule 23(c)(2).

Unlike the federal rule, the Louisiana procedural law governing class actions has not been expanded. As we have noted, it was based upon the true class action of the earlier federal rule. Hence, the earlier holdings of the federal courts that mass tort claims form a spurious class action are most persuasive.

A class action based upon mass tort claims is an amorphous procedure, frequently degenerating into multiple law suits. In the present mass tort, at least ten other damage suits have been filed. As the trial judge noted, a motion for consolidation is pending. In my opinion, the majority does violence to the codal article, carefully formulated by the Louisiana State Law Institute and adopted by the Legislature. As the redactors noted, “There is no need for either the hybrid or the spurious class action in Louisiana.” Art. 591, Official Revision Comments C.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I join the Chief Justice in his well-reasoned dissent. See also my dissent in Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975).

      . La.C.Civ.P. art. 591 provides: “A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is: (1) Common to all members of the class * *

      . La.C.Civ.P. art. 592 provides: “One or more members of the class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of ail members.”

      . Similar (but more detailed) criteria for allowance or disallowance of a class action are set forth by the Uniform Class Actions Act [Rule], Section 3(a) (National Conference of Commissioners on Uniform State Laws (1976)) (reprinted at 12 Uniform Laws Annotated, Supp. (1977) p. 10):
      “In determining whether the class action should be permitted for the fair and efficient adjudication of the controversy . . . the court shall consider, and give appropriate weight to, the following and other relevant factors:
      (1) whether a joint or common interest exists among members of the class;
      (2) whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for a party opposing the class;
      (3) whether adjudications with respect to individual members of the class as a practical matter would be dispositive of the interests of other members not parties to the adjudication or substantially impair or impede their ability to protect their interests;
      (4) whether a party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the class as a whole;
      (5) whether common questions of law or fact predominate over any questions affecting only individual members;
      (6) whether other means of adjudicating the claims and defenses are impracticable or inefficient;
      (7) whether a class action offers the most appropriate means of adjudicating the claims and defenses;
      (8) whether members not representative parties have a substantial interest in individually controlling the prosecution or defense of separate actions;
      (9) whether the class action involves a claim that is or has been the subject of a class action, a government action, or other proceeding;
      (10) whether it is desirable to bring the class action in another forum;
      (11) whether management of the class action poses unusual difficulties;
      (12) whether any conflict of laws issues involved pose unusual difficulties; and
      (13) whether the claims of individual class members are insufficient in the amounts or interests involved, in view of the complexities of the issues and the expenses of the litigation, to afford significant relief to the members of the class.”

      . The showing made before us indicates, for instance, that at least 91 inmates notified the attorneys for the representative plaintiffs of their desire not to be excluded from the benefits of this class action. They did so within six months of the filing of the suit (i. e., within the prescriptive year), thus relying upon this class action as the vehicle to advance their claims.

      . For instance, in diversity cases a federal class action is not available unless the separate and distinct claim of each member of the class exceeds the $10,000 jurisdictional limit. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). See Theis, Zahn v. International Paper Co.: The Non-Aggregational Rule in Jurisdictional Amount Cases, 35 La.L.Rev. 89 (1974).

      . 7 Wright & Miller, Federal Practice & Procedure, Section 1783 (1972); Comment, Mass Accident Class Actions, 65 Cal.L.Rev. 1615 (1972); Comment, Damages in Class Actions: Determination and Allocation, 10 Boston College Ind. & Comm.Law Review 615, 617-18 (1968).

        . Bentkowski v. Marfuerza Compania Maritima, S. A., 70 F.R.D. 401 (E.D.Pa.1976); Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D.Fla.1973), affirmed without opinion, 507 F.2d 1278 (5th Cir. 1974).
      In McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir. 1975), (airplane crash killing 335 passengers) and La Mar v. H & B Novelty & Loan Company, 489 F.2d 461 (9th Cir. 1973) (class action for Truth in Lending Violations against pawnbrokers other than that defendant with whom the representative plaintiffs had done business), a federal appellate court held that a class action was not an appropriate procedural vehicle to assert the claims respectively advanced. See also Causey v. Pan American World Airways, Inc., 66 F.R.D. 392 (E.D.Va.,1975) (96 passengers, including 17 Americans, only two of whom were forum residents, killed in airplane crash in Indonesia). Due to the factual distinctions noted, these decisions cited to us are not remotely persuasive that a class action is inappropriate for the present litigation.

      . We therefore do not find persuasive the defendants’ argument that our recognizing the present suit as a class action will resurrect prescribed claims. To the contrary, our denial of class action status will deprive of their day in court those members of the class who relied upon the filing of the present suit to advance their claims, instead of filing separate actions. See, e. g., footnote 4 above. Further, this suit was filed as a class action some six months before the prescriptive year had tolled; if the action had been facilitated instead of obstructed, in all probability all members of the class would have been identified before the year expired (see text below).

      . Federal Rule 23 (1938), upon which our own class action code articles are patterned, see Official Revision Comment (b), La.C.Civ.P. art. 591, did not initially require notice to unrepresented members of the class bound by the class-action judgment. However, in 1966, because of due process considerations indicated by United States Supreme Court decisions, it was amended to provide for “the best notice practicable under the circumstances”, FRCP 23(c)(2), see also 23(d)(2). See advisory committee report as to latter amendment, 3 Moore’s Federal Practice, Section 23.01 [12.2] (1977 revision).

      . It may reasonably be presumed that de min-imis damages were suffered by those who did not do so, if they did not either file separate suits or else give notice (see footnote 4) of their intention to be served by this class action.

      . For instance, the Uniform Class Actions Act [Rule], cited at footnote 3, provides, Section 7(a), that the court, after hearing, shall direct the giving of notice to the class, and Section 7(b), that the “notice shall include
      “(1) a general description of the action, including the relief sought, and the names and addresses of the representative parties;
      (2)a statement of the right of a member of the class under Section 8 to be excluded from the action by filing an election to be excluded, in the manner specified, by a certain date;
      (3) a description of possible financial consequences on the class;
      (4)‘a general description of any counterclaim being asserted by or against the class, including the relief sought;
      (5) a statement that the judgment, whether favorable or not, will bind all members of the class who are not excluded from the action;
      (6) a statement that any member of the class may enter an appearance either personally or through counsel;
      (7) an address to which inquiries may be directed; and

        (8) other information the court deems appropriate.”

      . Cf. Section 7(c), Uniform Class Actions Act [Rule], cited footnote 3: “The order shall prescribe the manner of notification to be used and specify the members of the class to be notified. In determining the manner and form of the notice to be given, the court shall consider the interests of the class, the relief requested, the cost of notifying the members of the class, and the possible prejudice to members who do not receive notice.”

      . The main opinion was subscribed by three members of the Court.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. DeWayne F. HALL.
    No. 59274.
    Supreme Court of Louisiana.
    Sept. 19, 1977.

      Johnnie A. Jones, Adair D. Jones, Jones & Jones, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

DeWayne F. Hall was charged by bill of information with armed robbery in violation of La.R.S. 14:64. At the time of the commission of the offense, defendant was sixteen years of age. Pursuant to La. R.S. 13:1571.1, et seq., he was transferred from the juvenile court to the criminal district court for trial as an adult. After trial by jury, defendant was found guilty as charged and was sentenced to serve five years and six months at hard labor without benefit of parole, probation or suspension of sentence with credit given toward service of sentence for time spent in custody prior to imposition of sentence. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in overruling his exception to the jurisdiction of the court.

At trial, defendant claimed that the district court lacked jurisdiction to try him because the juvenile court which transferred him to district court for trial as an adult lacked personal jurisdiction over him. Defendant abandons this argument on appeal and contends instead under this assignment of error and in brief to this court that the statutes authorizing the transfer of certain juveniles to district court and providing rules for the conduct of a transfer hearing, La.R.S. 13:1571.1, et seq., are unconstitutional. He argues that the statutes are fatally infirm in that they authorize the juvenile court to look at the prior arrest and conviction records of a juvenile in determining whether he should be transferred without making such records available to his attorney and because different attorneys may be appointed to represent the juvenile at the transfer hearing and subsequent adult trial.

In State v. Everfield, 342 So.2d 648 (La.1977), we held that the due process requirement of access by defense counsel to all social, probation and other reports relevant to the issue of transfer or considered by the court in making its determination is a procedural safeguard implicitly embodies in our transfer statute. Accordingly here, as in State v. Everfield, we find it unnecessary to rule our transfer statute unconstitutional. Moreover, in the instant case the written reasons for transfer rendered by the juvenile judge reflect that the juvenile’s defense counsel was given notice of his right to examine all judicial and social records and that an order was directed to the custodian of the records to insure their availability. Hence, the procedural safeguard of access to all such relevant material was accorded in defendant’s case.

Defendant’s argument that the transfer statute is unconstitutional for permitting the appointment of a different attorney to represent a defendant at the transfer hearing and subsequent trial in district court is similarly without merit. While access to effective assistance of counsel at a juvenile transfer hearing is constitutionally required, Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), we have been cited no authority for the proposition that a transfer statute is unconstitutional unless it provides for representation by the same attorney at the subsequent trial. It may be preferable to have a single attorney represent a defendant throughout the entire procedure; however, there is no constitutional right in this regard. Moreover, defendant makes no allegation that his representation by a different attorney in district court was in any way prejudicial to his defense. Nor does he claim ineffective assistance of counsel.

Hence, we find no merit in defendant’s contention that the statutory provisions for transfer of juveniles for trial in district court are unconstitutional either on their face or as applied.

For the first time in brief, defendant additionally asserts that his trial in district court constituted double jeopardy after the transfer hearing. It is well settled that a new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976). In any event, the United States Supreme Court in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) held that double jeopardy bars retrial in a criminal district court only after an adjudicatory hearing in juvenile court. The Court clearly stated that a double jeopardy issue is not presented where a transfer hearing is limited to a determination of the merits of transfer even if evidence of probable cause is admitted relative to the transfer issue. La.R.S. 13:1571.1, et seq., authorizes a hearing to ascertain whether certain juveniles should be transferred to the jurisdiction of an adult criminal court. The hearing is not adjudicatory in nature. Only such evidence may be introduced at the transfer hearing which pertains to the transfer criteria stated in La.R.S. 13:1571.1 and to determine whether probable cause exists that the child committed the acts alleged in the original petition. La.R.S. 13:1571.4. Thus, defendant in this case was not twice placed in jeopardy.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a new trial.

In his motion for a new trial, defendant urged that two rulings of the trial judge pursuant to defense objections demonstrated prejudicial error. The first ruling complained of concerned jurisdiction of the juvenile court which held the transfer hearing in the instant case. Defendant abandons this basis for his new trial motion on appeal. Defendant secondly complained of the ruling of the trial judge denying his motion to suppress an oral confession. Defendant contends that the confession was not free and voluntary because the Miranda, warnings given him prior to his confession did not include an additional warning that he might be transferred for trial as an adult in criminal court. We find no merit to this argument. In In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the United States Supreme Court extended its holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to juveniles. The decision did not, however, indicate that juveniles are entitled to be warned respecting concerns beyond the issues of self-incrimination and right to counsel addressed in Miranda. We are satisfied that there is no constitutional requirement that a juvenile be instructed as to the courts in which he may be tried or the potential penalties which may accompany his offenses before he can waive his Miranda rights and make a free and voluntary confession. The “warnings” proposed by defendant would require arresting officers to offer legal counsel as to whether a particular juvenile might be subject to transfer proceedings. In many cases, such advice would require familiarity with a juvenile’s past record. Indeed, in the instant case, the arresting officers were not even aware that defendant was a juvenile. As a matter of fact, defendant was originally booked and charged as an adult in the district court by mistake prior to his transfer to the juvenile authorities.

La.R.S. 15:451 provides that, before a confession can be introduced into evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, supra. While close scrutiny is required in determining whether the state has met its heavy burden of demonstrating that the confession of a juvenile was free and voluntary, we have held that the age of a defendant does not of itself render a confession involuntary. State v. Boss, 343 So.2d 722 (La.1977); State v. Sylvester, 298 So.2d 807 (La.1974). See also West v. United States, 399 F.2d 467 (5th Cir. 1968), cert. denied, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1969).

The record reflects that defendant in this case was fully informed of his Miranda rights on several occasions and that he signed a waiver of rights form. It additionally demonstrates that defendant was not threatened, abused, coerced or promised anything in return for his confession. Defendant presented no evidence to controvert the voluntary nature of his confession. After reviewing the record, we are convinced that the state satisfied its burden of affirmatively proving that defendant’s confession was freely and voluntarily made after defendant had been fully advised of his Miranda rights. Accordingly, since there is no constitutional requirement of further “warnings,” the trial judge did not err in denying defendant’s motion to suppress and in admitting his confession in evidence.

The third basis for defendant’s new trial motion was that he was denied a trial by a jury of his peers inasmuch as he was not tried by a jury of juveniles. The record reveals that defendant neither filed a motion to quash nor made any objection at trial to the composition of the jury. Accordingly, defendant has waived his objection to this alleged error. La.Code Crim.P. arts. 535 B(2), 535 D and 841; State v. Lewis, 288 So.2d 324 (La.1974). In any event, there is no merit to defendant’s contention. He was tried as an adult in criminal district court under the Louisiana Code of Criminal Procedure which fixes the minimum age of jurors at eighteen. La.Code Crim.P. art. 401(2).

Defendant finally argues that the provisions of La.R.S. 13:1569, et seq., are unconstitutional in that a prosecution of a minor child is permitted thereunder without affording the child the same constitutional protections afforded an adult likewise charged. Defendant fails to specify, however, wherein his constitutional rights have been infringed. In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the Supreme Court indicated that juvenile transfer procedures are constitutionally adequate where they provide for: (1) a hearing with effective assistance of counsel; (2) access by defense counsel to all social, probation and other reports relevant to the issue of transfer or considered by the court in making its determination; and (3) a statement setting forth the reasons for the juvenile court ruling with sufficient specificity to permit meaningful review. These procedural safeguards are either expressly or implicitly embodied in Louisiana’s transfer statute. State v. Everfield, 342 So.2d 648 (La.1977). Furthermore, La.R.S. 13:1571.1, et seq., expressly provides for the constitutional rights extended to juveniles in In Re Guait, supra. La.R.S. 13:1571.1 A(2) provides for a hearing on whether the transfer should be made. A juvenile is entitled to written notice of the time, place and purpose of the hearing at least ten days before the hearing (La.R.S. 13:1571.1 A(3)); the trial judge must find that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court (La.R.S. 13:1571.1 A(4)); a juvenile is entitled to introduce evidence in his own behalf, to confront and cross-examine witnesses against him and to refuse to incriminate himself (La.R.S. 13:1571.4); and he has a right to counsel or to have counsel appointed in case of his indigency (La.R.S. 13:1571.3). Moreover, a juvenile is entitled to a record of the proceedings on request and to appellate review of the judgment of the transferring court. La.R.S. 13:1571.2; La.R.S. 13:1571.4 B. The record indicates that defendant was afforded these rights in the instant case. We are satisfied that the juvenile transfer statute provides for all constitutional rights to which defendant was entitled. Once defendant was transferred for trial as an adult in district court, he was subject to the same procedural rules and entitled to the same constitutional guarantees afforded any adult similarly charged and tried. There is no indication whatsoever that defendant was treated otherwise. Accordingly, defendant’s claim that the transfer statute permits a juvenile to be prosecuted without being afforded the constitutional rights afforded adults similarly situated is groundless.

In view of the foregoing, we are unable to say the trial judge erred in denying defendant’s motion for a new trial. Assignment of Error No. 5 is without merit.

DECREE

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

      . The record reflects that defendant did not apply to this court for a writ of review of the transfer order or designate the transfer order as error to be urged on appeal to this court. La.R.S. 13:1571.4B; La.Code Crim.P. arts. 844 and 920.

      . Assignments of Error Nos. 2, 3, 4 and 6 have been neither briefed nor argued. Therefore, we consider these assignments or error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Nathan BALLANSAW.
    No. 59282.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, and Robert D. Long, Jr., Asst. Dist. Attys., for plaintiff-relator.
    Arthur L. Harris, New Orleans, for defendant-respondent.
   DIXON, Justice.

By bill of information the district attorney for Orleans Parish, in three separate counts, charged the defendant, Nathan Bal-lansaw, with procuring, receiving and concealing property which had been the subject of thefts, under circumstances which indicated that the defendant knew and had good reason to believe that the property was the subject of the thefts. The defendant moved to suppress evidence which had been seized in the execution of the warrant, arguing that the warrant was not based on probable cause. The trial judge granted the defendant’s motion to suppress, and this court granted writs to review the ruling of the trial judge. State v. Ballansaw, 342 So.2d 869 (La.1977).

The trial judge ruled that the application for the warrant did not establish the reliability of the police informant.

Therefore, the sole issue for determination is the adequacy of the affidavit in support of the search warrant. The affidavit reveals the following: on November 5, 1976 at 5:30 p. m. the two affiants (police officers) were contacted by a “confidential informant.” The informant had cooperated with these officials in the past and had previously supplied information useful in securing search warrants which had led to arrests and convictions of narcotics offenders. The informant had also given the officers information useful in recovering stolen property taken in burglaries in the officers’ district. The informant told the police that on the preceding day, November 4, 1976, he had been in the residence of the defendant, Nathan Ballansaw, located at 4613 Chestnut Street in New Orleans. The informant told the officers that while in the apartment he saw the property that was listed on the first page of the application for search warrant, including a horsehoe ring, a color television, a wristwatch, a cameo ring and some drugs. He said that the defendant had bragged to him that the property was stolen in burglaries from residences and he remembered where the property had been stolen. The officers learned the exact location of the burglaries from police bulletins in their files. The informant told the police where marijuana and heroin were located (although the charges here are for receiving stolen things) in the house. The informant told the officers that while he was in the house he saw the defendant give his girl friend some jewelry that had been taken in various burglaries. The informant also told the officers of the exact location in the house of the television, the watch, the cameo ring and the horseshoe ring. From the descriptions of the burglaries that the defendant gave to the informant (and which the informant related to the officers) and from a description of the property seen in the defendant’s house by the informant, the officers were able to match up the stolen property with reports of burglaries in their district and precisely determine whose property the defendant possessed. Further, the affiants declared that they drove past the defendant’s house and the physical appearance of the house matched with the informant’s description. In addition, the informant positively identified a police photograph of the defendant as the man whose house he had been in and he further verified his identification by describing the defendant’s various tatoos.

When information obtained from a “confidential informant” is an essential element in establishing the sufficiency of an affidavit, the magistrate must be informed of underlying circumstances establishing both the reliability of the information and the credibility of the informant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Brawley, 347 So.2d 238 (La.1977). In testing the sufficiency of the affidavit, the court must decide the issue without regard to the success of the after-the-fact search. Here, the confidential informant’s reliability has been adequately demonstrated. He had given information to the officers in the past, not only on narcotic cases but also on burglaries in the area, and this information helped lead to arrests and convictions. As to the reliability of the information, the informant told the affiants that he had been in the defendant’s apartment the previous day and had personally observed all of the stolen property. He gave detailed descriptions of exactly where all the property was located. In addition, the information about the defendant’s residence was corroborated by the police officers, and his identification of the defendant was corroborated by the police officers. The only question remaining was whether there was sufficient information before the magistrate for him to find probable cause that the items in the defendant’s house were in fact stolen. According to the informant, he was told by the defendant that these items were stolen in burglaries in the district. The defendant’s “bragging” that these were stolen items constitutes an admission against penal interest by the defendant. Such an admission lends credibility to the statement made by the defendant and relied upon by the informant and the affiants. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); State v. Turner, 337 So.2d 1090 (La.1976). See also State v. Brawley, supra. In addition, the police officers stated that from the descriptions of the burglaries relayed to them by the informant and the descriptions he gave of the property, the police officers were able to match up the victims, property and police item numbers on these unsolved burglaries. Taken together, all of this information did establish the requisite reliability for the information given the officers, and there was probable cause for the issuance of the search warrant. The State’s argument has merit and the motion to suppress should not have been granted.

The ruling of the district judge on the motion is suppress is reversed and the case is remanded to the district court for further proceedings.

      . The affidavit in support of the search warrant provides:
      “On Friday, November 5, 1976, at approximately 5:30 PM, Officers Ross Hocklin and Wayne Tamborella assigned to Unit # 227 of the Second Police District were met at the Second District Station, 4317 Magazine St., by a competent confidential informant who has cooperated with these officers in the past on several occasions and who has supplied information useful in securing search warrants which have led to the arrest and conviction of narcotic offenders. This subject has also given the officers useful information toward the recovery of stolen property in several other cases where the property was taken in the second district area in burglaries.
      “The subject stated to the officers that a subject known to him has in his residence at this time, the person known to the Cl is Nathan Ballensaw NM, DOB/081951 residing 4613 Chestnut St., N.O., Louisiana. The Cl stated to the officers that he had been inside the subjects residence as recently as November 4, 1976, and that he had seen the above listed property inside the residence [the property listed on the first page of the application for search warrant included: One (1) white metal horseshoe ring with eight (8) clear stones; One (1) G.E. seventeen (17) inch color T.V.; One (1) lady’s twenty-three diamond Hamilton wristwatch white gold in color; One (1) cameo ring, white metal in color of band and setting] he further stated that the subject had bragged to him that the property was stolen in burglaries and that he even could remember where the property was taken from. He toled (sic) the Cl the property was taken from residences in the second district area and the officers learned the locations of the burglaries from the bulletins in the second district files from the locations supplies (sic) from the Cl. The Items and the locations together with the victims are listed below:
      Item
      J-13835-76
      J-16683-76
      J-22217-76
      J-23623-76
      Location
      1301 Napoleon Ave.
      5124 Chestnut St.
      818 Upperline St.
      926 Jena St.
      Victim
      Melba H. Clesi
      Lewis A Pailet
      Faye Bush
      Sheldon Heirsch
      Residing that address
      Residing that address
      Residing that address
      Residing that address
      “The Cl further stated to the officers that the subject is in possession of approximately one (1) pound of marijuana and that the marijuana is usually kept on a small table in the living room of his residence, in a glass dish. He further stated that Ballensaw is a heroin addict and that he usually keeps his heroin inside the third drawer down on the right hand side of the sink in the kitchen of his residence. The Cl went on to say that while he was inside the residence on the last occasion that he was present at the time that Ballensaw gave his girlfriend Cory Anderson NF 23 yrs of age some of the jewelry taken in the burglary under Item # J-22217-76, and some other jewelry from other burglarys (sic) in the recent past; these burglaries are still under investigation and will be acted on in the near future. The Cl accompanied Officers to the location of the residence where Ballensaw resides and they learned that he was correct in the description of the residence and he Identified Ballensaw’s NOPD BofI Photo # 134-239 as being the subject that had told him of the burglaries and identified the property as being stolen to him; he further varified (sic) his identification of Ballensaw from the Tatoos on his left arm of ‘DF’ and ‘W’ and on his right arm of T’ and of the name ‘Nathan’ tatooed on his chest. [He stated to the officers that he did not know if Cory Anderson had been arrested, and that he could show the officer where she lived at this time. He directed the officers to the 800 block of Gentaylor St., and pointed out a large white house with no municipal numbers on the house and there were several entrances to the house and the officers could nto (sic) determine if the residence was an apartment complex or not, and the officers left the area.]
      “The Cl stated to the officers that the Color T.V. was in the rear of the bedroom and was resting on the chest of drawers; the lady’s (sic) watch with the diamonds was sitting on the mantle piece in the room just before the bedroom, the Cameo ring was in the second drawer of the chest of drawers that the T.V. is sitting on in the bedroom; the man’s horseshoe ring was being worn by the subject, Ballensaw, at the time of his visit and he was shown other jewelry in the chest of drawers, and other T.V.’s in the residence and was told that they were stolen, but that they were not in working order and that he could get the Cl a pistol if he wanted one. He told the Cl that he had a pistol in the residence, but did not relate to him whether it was stolen or not and he did not produce it to the Cl; the Cl had attempted to contact the officers in the early morning hours of 11-05-76, but was unable to contact them until about 5:30 PM on that date. From the Cl’s description of the property and of the subjects relating the incidents of the burglaries, the officers were able to locate the correct locations and items and victims and the entire list of stolen properties.”