author: DIXON, Justice. DENNIS, Justice, SANDERS, Chief Justice

text:
    STATE of Louisiana v. Ramond EAMES.
    No. 61699.
    Supreme Court of Louisiana.
    Dec. 27, 1978.
    Concurring Opinion Jan. 19, 1979.
    Rehearing Denied Jan. 26, 1979.
    Robert C. Williams, R. Judge Eames, Ba-. ton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Ramond Eames was charged by bill of information for having:

. . violated Louisiana Act Number 176 of 1969 in that you incited a riot which resulted in the deaths of Ralph Hancock and Dwayne Wilder Second Count: That on the above date set forth, you feloniously violated Louisiana Act Number 176 of 1969 in that you participated in the aforementioned riot which resulted in the deaths of Ralph Hancock and Dwayne Wilder More specifically, the above violations occurred in that you willfully endeavored and procured your co-defendants and others present to create and participate in a public disturbance involving your co-defendants and others acting together and in concert by urging and procurring (sic) them to take over the city of Baton Rouge by blocking the 1300 block of North Boulevard with parked vehicles and a line of human beings, involving you and your co-defendants, across North Boulevard, thereby creating a confrontation with police authorities ana physically attacking said authorities when they attempted to remove said obstruction causing a public disturbance from which the deaths of Ralph Hancock and Dwayne Wilder resulted . . . ”

The verdict of the jury was “guilty of attempted participation in a riot which results in death.” The jury had been instructed that one of seven responsive verdicts was “guilty of attempted participation in a riot.”

In a motion for arrest of judgment, the defendant argued that the verdict was not responsive, or was otherwise so defective that it would not form the basis of a valid judgment. C.Cr.P. 859.

Act 176 of 1969 is a lengthy act which defines several offenses. Some of the act appears at R.S. 14:329.1 through 329.7. The first three sections of the act are as follows:

“Section 1. The Legislature, in recognition of unlawful disorders across the nation which are disruptive of governmental and educational processes and dangerous to the health and safety of persons and damaging to public and private property, establishes by this Act certain criminal penalties and other sanctions for conduct declared in this Act to be unlawful. Section 2. A. A riot is a public disturbance involving an assemblage of three or more persons acting together or in concert which by tumultuous and violent conduct, or the imminent threat of tumultuous and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property. Section 3. Inciting to riot is the endeav- or by any person to incite or procure any other person to create or participate in a riot.”

Section 4 concerns the command by police to disperse. Section 5 concerns the “wrongful use of property.” Section 6 concerns interference with use of educational property and process. Section 7 concerns the proclamation of a state of emergency. Section 8 is the penalty clause:

“Section 8. A. Whoever willfully is the offender or participates in a riot, or is guilty of inciting a riot, or who fails to comply with a lawful command to disperse, or who is guilty of wrongful use of public property, or violates any other provision hereof shall be fined not more than five hundred dollars or be imprisoned not more than six months, or both.
B. Where as a result of any willful violation of the provisions of this Act there is any serious bodily injury or any property damage in excess of five thousand dollars, such offender shall be imprisoned at hard labor for not more than five years.
C. Where, as a result of any willful violation of the provisions of this Act, the death of any person occurs, such offender shall be imprisoned at hard labor for not to exceed twenty-one years.”

The jury was instructed that it could render one of seven verdicts, as follows:

“1. Guilty of- inciting or participating in a riot which results in death.
2. Guilty of attempted participation in a riot which results in death.
3. Guilty of inciting or participating in a riot which resulted in serious bodily harm.
4. Guilty of attempted participation in a riot which resulted in serious bodily harm.
5. Guilty of inciting or participating in a riot.
6. Guilty of attempted participation in a riot.
7. Not guilty.”

The verdict of the jury was not divided as to counts, nor was the jury instructed to find a verdict on both the counts in the bill of information. Count one of the bill of information was simply a charge that defendant incited a riot which resulted in deaths of two people. The second count, as noted above, accuses the defendant of having “participated in the aforementioned riot,” but is qualified by the detailed “more specifically” clause. “More specifically,” the defendant is charged with having endeavored to procure others to create and participate in a disturbance by acting together, and urging and procuring them to take over the city by blocking the street, thereby creating a confrontation and attacking the authorities, causing a public disturbance.

That portion of Act 176 of 1969 dealing with riots was carried over into the revised statutes as follows: Section 2 of Act 176 became 14:329.1; Section 3, 14:329.2; Section 8,14:329.7. These sections probably condemn two separate offenses, as relevant here. R.S. 14:329.2 defines “inciting to riot.” The penalty provision punishes not only one “guilty of inciting to riot,” but one who “participates in a riot.” It is highly likely that the legislature intended to punish two separate offenses (as here relevant); one inciting to riot; the other, participating in a riot. If only one offense was intended, it was the one defined: inciting to riot.

“Counts are charges of crime joined in the same indictment. Recitals in one count may be incorporated in subsequent counts by means of a clear and distinct reference. . . . ” C.Cr.P. 490.

Charged here is an offense on January 10, 1972; the bill of information was filed December 7, 1973. Therefore, Act 528 of 1975, repealing articles 491 and 492 of the Code of Criminal Procedure, relating to duplicity, and amending C.Cr.P. 493 to permit the joinder of offenses in separate counts is not applicable. At all times relevant to this case then, a bill could charge only one offense, but the same offense could be charged in different ways in several counts. C.Cr.P. 493, before the amendment by Act 528 of 1975.

In spite of the fact that the second count of the indictment announces that defendant is accused of participating in a riot, the detailed specifications charge him only with willfully endeavoring to procure others to do the acts described. Inciting to riot is defined, as noted above, as the “endeavor by any person to incite or procure any other person to create or participate in a riot.” The question, then, is whether there can be an attempt to incite a riot.

An attempt is an inchoate offense. The crime of attempt is designed to punish certain activity which was not completed— incipient criminal activity. It depends for its existence on a “specific intent to commit a crime.” R.S. 14:27. If the definition of another crime includes the attempt to do something, the attempt statute, R.S. 14:27, cannot be employed, for then a defendant would be charged with an attempt to attempt to do an illegal act. The reporter’s comment to R.S. 14:27 makes this clear:

“This section is in accord with the general common law concept of attempt. An attempt to commit any crime is an offense, whether the offense attempted be a felony or merely a misdemeanor. Clark and Marshall, Law of Crimes (4th ed. 1940) 153, § 113. Since there can be no such thing as an attempt to commit an attempt, there can be no attempt to commit either an aggravated assault or a simple assault. Those offenses are themselves in the nature of attempts to commit a battery. See Clark and Marshall, supra, 156, § 114(d).”

See also 28 La.L.Rev. 543, 544 (1968), footnote 115:

“There is no such thing as attempted conspiracy. The courts refuse to apply the principle of the inchoate crime of attempt to other inchoate crimes. Note, 9 La.L.Rev. 413 (1949).”

9 La.L.Rev. 413 was a case note on State ex rel. Clarence Duhon v. General Manager, Louisiana State Penitentiary, No. 39,091, July 20, 1948, in which this court approved without discussion the release on a writ of habeas corpus of one who had been convicted of attempted conspiracy without having filed a motion in arrest of judgment or having taken an appeal.

Since the bill could charge only one offense, and particularized the offense of inciting to riot, and since inciting to riot, as defined in the statute, is an inchoate offense, the verdict returned was not responsive, as there can be no attempt to incite, and inciting to riot was the only crime charged.

The conviction and sentence are reversed, and the defendant is discharged.

DENNIS, J., concurs in the decree and assigns reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, C. J., dissents and assigns reasons.

DENNIS, Justice,

with whom TATE and CALOGERO, JJ., join, assigns additional concurring reasons:

In addition to the reasons given in the majority opinion, the defendant’s conviction and sentence must be reversed because he was denied the rights to a fair and impartial jury guaranteed by the federal and state constitutions.

This criminal appeal raises the question of whether a black defendant, charged with inciting to riot during a Black Muslim street demonstration, was denied his rights to individual dignity and equal protection of the laws guaranteed by the Louisiana Constitution when the prosecuting attorney admittedly used the State’s peremptory challenges to remove blacks from the petit jury because he believed the fact of their race indicated they were likely to be partial due to their susceptibility of intimidation by radical elements of the black community.

This prosecution is one of the Baton Rouge “Black Muslim cases,” as denominated in defendant’s brief and in popular parlance. See, State v. Bell, 315 So.2d 307 (La.1975), 346 So.2d 1090 (La.1977); State v. Williams, 354 So.2d 562 (La.1978). The cases arose from a riot which erupted January 10, 1972 on a public street in Baton Rouge when police officers attempted to remove parked cars and disperse Black Muslim demonstrators blocking the thoroughfare. Five men were killed — two white deputy sheriffs and three of the black demonstrators; one white television reporter was severely beaten sometime before the riot and remains unconscious to this date.

Defendant, Ramond Eames, was one of the black persons at the scene of the violent public disorder. He was arrested and charged by bill of information with inciting or participating in a riot in which the death of a person had occurred. La.R.S. 14:329.1— 329.8. After a trial by a twelve-person jury on February 19-24,1974, the defendant was convicted of attempting to participate in a riot in which the death of a person had occurred and sentenced to serve nine years in prison at hard labor. Although the trial occurred over two years after the riot, racial tension was still present in the community, as evinced by the responses of many veniremen during voir dire and the prosecutor’s attempts to remove blacks from the jury.

After the trial the defendant filed a motion in arrest of judgment and a motion for a new trial based on his timely objections to the State’s exclusion of black persons from the petit jury by use of its peremptory challenges, and on the ground that, considering all circumstances, the ends of justice would be served by a new trial.

During the voir dire the State used a disproportionate number of its peremptory challenges to exclude blacks from the jury. One black juror was selected after exhaustion of the State’s peremptories. The mere fact that one black juror was selected does not prevent defendant from attempting to show a denial of due process or equal protection. State v. Bias, 354 So.2d 1330 (La.1978); State v. Bastida, 310 So.2d 629 (La.1975).

In support of defendant’s contention that he had been denied due process and equal protection of the laws under the United States Constitution and the Louisiana Constitutions of 1921 and 1974, the defendant attempted to show that systematic exclusion of black jurors had been practiced by the prosecuting attorney for several years. The only evidence offered by the defendant was the testimony of a court reporter who had kept partial records of the race of jurors peremptorily challenged in one division of the district court for three years. During the hearing and argument on the motions, however, the prosecuting attorney candidly admitted that he had not wanted blacks on the jury in the instant case and indicated that he had excluded them because he believed _that__any black juror would have been susceptible to intimidation by-black radicals in the community.

At the conclusion of the hearing on the motion, the trial judge overruled the motion, finding that the defendant had failed to prove systematic exclusion of blacks from petit juries by the State over a period of time, and commenting that the trial court was barred from otherwise inquiring into the prosecutor’s peremptory challenges by the decision of the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The defendant assigned this ruling as error and contends that the prosecuting attorney committed acts of racial discrimination prohibited by both state and federal constitutions when he used all of the State’s peremptory challenges to remove blacks from the jury.

Under this showing, in my opinion the defendant is entitled to a new trial under La.C.Cr.P. art. 851(5):

“The court, on motion of the defendant shall grant a new trial whenever:
“(5) the court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” (emphasis added)

My opinion is based upon the peculiar combination of factual and legal circumstances of this case, which show: (a) The prosecuting attorney admitted that jurors were peremptorily challenged because of race; (b) If the case had been tried after the effective date of the 1974 Louisiana Constitution, the prosecutor’s admission would have established a clear denial of equal protection of laws under the state constitution; (c) The prosecutor’s admission does establish a probable denial of equal protection of laws under the Fourteenth Amendment; (d) Although the case was tried on February 19-24, 1974, the hearing on the motion for a new trial was not held until January 19 and March 22, 1977, well after the effective date of the 1974 Louisiana Constitution; (e) In cases such as the present case, in which racial tensions were high, the removal of all but one member of defendant’s race from the jury is inconsistent with the guarantee of a fair and impartial trial which both the prosecution and the court are sworn to uphold.

Although La.C.Cr.P. art. 858 provides that neither the appellate nor supervisory jurisdiction of this Court may be invoked to review the granting or the refusal to grant a new trial, except for error of law, an abuse of the trial judge’s discretion in determining whether the ends of justice would be served by granting a new trial presents a question of law. State v. Randolph, 275 So.2d 174 (La.1973). Of course, great weight must be attached to an exercise of the trial court’s discretion, which should not be disturbed on review in the absence of a clear abuse. See, e. g., State v. Jackson, 253 La. 205, 217 So.2d 372 (1968); State v. Truax, 222 La. 463, 62 So.2d 643 (1952). Nevertheless, in view of the showing made, the denial of a new trial in the present case amounted to a clear abuse of discretion.

The trial judge’s reliance upon Swain v. Alabama as precedent for his refusal to inquire into the issue raised by the State’s acknowledged use of peremptory challenges to remove black citizens from the j'ury calls for a thorough reexamination of that case. In the Swain case, the defendant, a nineteen-year-old Negro charged with the rape of a seventeen-year-old white girl, was convicted by an all-white j'ury in Talladega County, Alabama, and sentenced to death. Although the county’s population was twenty-six percent black, and ten to fifteen percent of the j'ury venires was black, no Negro had actually served on a petit j'ury for fifteen years. The absence of blacks from trial juries was attributable to the operation of the Alabama struck jury system, a variant of the peremptory challenge system, in which veniremen remaining after excuses, exemptions, removals for cause are “struck” — the defense striking two and the prosecutor striking one alternatively until only twelve jurors are left. In the Swain case there were eight blacks on the venire; two were exempt, and the prosecution struck the rest. Swain contended that he had been denied equal protection of the laws by racially discriminatory selection of the jury venire and the petit jury. Swain argued that discrimination was accomplished by use of the State’s peremptory strikes in the particular case to remove all black veniremen; and by use of the peremptory strike system through the years in a scheme to exclude all blacks.

The Supreme Court rejected Swain’s contentions and affirmed the judgment of conviction. As I read the opinion of the Court, although it is subject to differing interpretations, the decision was based on several interrelated reasons. The underlying rationale appears to be that the equal protection clause of the Fourteenth Amendment does not prohibit a state prosecutor from peremptorily challenging a venireman because of his race if the fact of his race in that particular case would lead in good faith to the conclusion that the juror is likely to be partial. In order to protect the efficacy of the peremptory challenge, and to prevent the disruption of trials by defendants’ continual charges of prosecutorial abuse, the Court created a presumption that in any particular case the prosecutor has invoked the state’s peremptories because of good faith trial-related considerations. The Court stated that the presumption is not destroyed by the mere fact that in the case at hand all blacks were removed from the jury. Perhaps the defendant by proof of a state’s systematic striking over a period of time of blacks in the selection of petit juries, or by eliciting an admission from the prosecutor that discrimination accounted for his rejection of blacks, may raise a prima facie case under the Fourteenth Amendment. However, in Swain there was no admission by the prosecution and the Court thought that the record in the case was not sufficient to demonstrate systematic exclusion.

The Court refused to apply the rule developed in a long line of cases involving racial exclusion from jury venires, e. g., Norris v. Alabama; Patton v. Mississippi; and Arnold v. North Carolina, which provides that proof of total or virtual exclusion of a class from jury service, coupled with a showing that qualified members of that class resided within the community, makes out a prima facie case of discrimination, which the State must rebut with evidence that the exclusion is not the result of state discrimination. Because this rule had evolved in cases dealing with the selection of jury venires, which is wholly in the hands of state officials, the Court concluded that it could not be invoked by Swain to contest the selection of the petit jury unless it was shown that the prosecutor, as well as defendants’ lawyers, participated over a period of time in causing the total exclusion by his peremptory challenges.

The opinion of the Court in Swain v. Alabama has been critically assayed from a number of standpoints. The most fundamental objection is that the Court, by placing the state’s peremptory challenge beyond realistic scrutiny, converted the challenge from a device for protecting defendants into a tool for restricting the availability of the defendant’s constitutional right to equal protection of the law in jury selection. The state’s use of peremptory challenges to totally exclude blacks from petit juries would seem to present a classic prima facie case of racial discrimination. The majority opinion in Swain, however, refused to acknowledge the natural inference to be drawn from these facts, and instead saddled the defendant with an impossible burden.

The Swain decision has also been criticized for its questionable historical analysis of the nature and purpose of the peremptory challenge, from which the Court inferred that the prosecutor’s use of the challenge should be given the same protection as it receives in the defendant’s hands. This view is not only historically suspect. Arguably, it also ignores constitutional rights of the accused which could be imperiled by the state’s use of peremptory challenges. The Court apparently believed that exclusion of black jurors would not prevent a trial by a fair and impartial jury because they could be replaced by impartial white jurors. However, in cases such as Swain and the present case, where racial tensions are high, an excluded black juror is more likely to be replaced by a hostile white juror.

Since the Swain decision, defendants have objected frequently to prosecutors’ removal of blacks from trial juries by peremptory challenges, but the Supreme Court’s “systematic exclusion” test, according to our research, has never been met by a defendant in a reported decision.

Although this Court in the past has followed Swain, recent opinions have expressed concern over the continuing claims of racial exclusion in the selection of East Baton Rouge Parish juries. The instant appeal indicates that past warnings against an obsolete prosecutorial attitude have gone unheeded. It is also the first case in which this Court has considered a charge of peremptory abuse based upon the Louisiana Constitution of 1974. Although the instant case was tried before the effective date of the 1974 Louisiana Constitution, the requirements of its new equal protection clause should be considered in determining whether the ends of justice would be served by the granting of a new trial. La.C.Cr.P. art. 851(5). Accordingly, this is an appropriate occasion to consider to what extent the 1974 state constitutional guarantee of individual dignity provides protection against racial discrimination in the selection of a petit jury.

Since the state’s peremptory challenge is not a federally protected right, Louisiana is free to afford its citizens greater protection against invidious peremptory challenges than the minimum required of a state by the Fourteenth Amendment as interpreted by the Supreme Court in Swain. In its present constitution, and in all previous state charters beginning with the constitution of 1879, Louisiana has chosen not to guarantee peremptory challenges to the prosecution, while assuring criminal defendants the right to challenge jurors peremptorily. The questions raised by defendant’s assignment of error under the 1974 Louisiana Constitution, therefore, are (1) whether the State of Louisiana provides any greater protection against racial discrimination by the State in the selection of petit juries than that provided by the Fourteenth Amendment and (2) what evidentia-ry burden must the defendant sustain in order to have a petit jury panel set aside as having been selected through official discrimination on the basis of race?

The answer to the first question is clear. Article I, § 3 of the 1974 Louisiana Constitution absolutely prohibits state action which discriminates against a person because of race or religion. The use of the Fourteenth Amendment language and the remarks by the Louisiana constitutional convention delegates indicate that our concept of “state action” is at least as broad as that which has evolved in federal court decisions. Accordingly, it is clear that the convention intended to prohibit racial discrimination by the state’s executive officers, such as the district attorneys, as well as by legislative action. See Mooney v. Holohan, 294 U.S. 103, 112-13, 55 S.Ct. 340, 342, 79 L.Ed. 791, 794 (1935) (“the action of prosecuting officers on behalf of the state . may constitute state action within the purview of the Fourteenth Amendment”); Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 417, 419 (1900) (the Fourteenth Amendment governs any state action “whether through its legislature, through its courts, or through its executive or administrative officers”). See also, Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1907). However, by absolutely prohibiting racially discriminatory state action, our state declaration of the right to individual dignity goes beyond the decisional law construing the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment as interpreted in Swain, apparently allows a prosecutor to exclude a venireman peremptorily because of his race if it is based on “trial-related considerations.” Our state charter, on the other hand, while allowing reasonable discrimination because of other characteristics, permits none because of race or religion, even though the discrimination may be reasonably related to a legitimate state objective such as a criminal prosecution.

This Court is required by its duty to support the constitution of this State to adopt evidentiary rules which will promote the enforcement of the individual liberties guaranteed by the constitution. Practical experience and academic thought since the Swain decision indicate that the burden of proof adopted therein is too heavy to allow a defendant to enforce his right to equal protection except in the rarest of cases. Moreover, since the Louisiana equal protection standard absolutely prohibits a prosecutor from practicing trial-related racial discrimination, the presumption that “the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the Court” is not justified if substantial evidence in the particular case on trial indicates exclusion of jurors because of race. The Louisiana Constitution’s guarantee of individual dignity is a command, rather than a homily, specifically prohibiting any form of state discrimination because of race. It is an earnest attempt by the framers and the citizens to fulfill one of the primary purposes for which the constitution was ordained and established — “to assure equality of rights.” La. Const.1974, Preamble. No less is required of this Court than that it should assure the actual fulfillment of the constitutional purpose and the guarantee by a realistic evi-dentiary standard.

A presumption should exist during the selection of a jury that individual peremptory challenges by the prosecution are being properly used. Once it becomes evident, however, that the prosecution has used a disproportionate number of challenges against members of one race, or has eliminated a disproportionate number of members of a certain race, considering the proportionate number of that race included within the venire after excuses, exemptions and removals for cause, in my opinion, a prima facie case of discrimination because of race has been established, and the burden of proof should shift to the prosecutor to show that his challenges were not exercised on the basis of race. The State may sustain its burden by offering evidence that its reasons for individual challenges were not because of race. Although the reasons need not be sufficient to ground a challenge for cause, they should appear to have been applied consistently to similarly situated jurors of other groups, and they should be reasonably relevant to the particular trial or to non-racial characteristics. If the trial court determines that the jury has been improperly selected, it should discharge the jury and select a new one according to constitutional procedures.

Applying these rules to the record in this case, it is clear that the defendant made a prima facie showing that the prosecutor had exercised peremptory challenges against black jurors because of their race. The trial court, therefore, erred in deciding that the prosecutor was not required to respond to the defendant’s allegation, and in denying defendant’s motions without a rebuttal showing by the prosecutor that the challenges were each predicated on nonracial grounds.

The California Supreme Court, in its recent decision in People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 588 P.2d 748 (1978), reached a similar conclusion for different reasons. Rejecting Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) as precedent in interpreting the California constitution’s guarantee of trial by an impartial jury drawn from a representative cross-section of the community, the Court held that peremptory challenges to remove prospective jurors on the sole ground of “group bias” violates the constitutional safeguard. Finding that the prosecutor’s peremptory challenges of all prospective black jurors established a prima facie showing that the challenges were exercised against black jurors on the basis of “group bias” alone, and that the prosecutor had offered no rebuttal, the California court reversed the defendants’ convictions.

Crucial to the California Supreme Court’s decision in Wheeler is its conclusion that under the California constitution a party is entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits. Accordingly, the Court reasoned that if the essential quality of representativeness were to be preserved, prospective jurors could be subjected to challenges for cause and peremptory challenges on grounds of “specific bias,” but that it could not “countenance the decimation of the surviving jurors by peremptory challenges on the ground of group bias alone.” 148 Cal. Rptr. 903, 583 P.2d 762. The Court explained the difference between “group bias” and “specific bias” as follows:

“The purpose of the challenges also dictates their scope: they are to be used to remove jurors who are believed to entertain a specific bias, and no others.
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“For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority. Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a jur- or’s objectivity on no more than the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’ (4 Blackstone, Commentaries * 353) — upon entering the box the juror may have smiled at the defendant, for instance, or glared at him. Responsive to this reality, the law allows removal of a biased juror by a challenge for which no reason ‘need be given,’ i. e., publicly stated: in many instances the party either cannot establish his reason by normal methods of proof or cannot do so without causing embarrassment to the challenged venireman and resentment among the remaining jurors.
“All of these reasons, nevertheless, share a common element: they seek to eliminate a specific bias as we have defined that term herein — a bias relating to the particular case on trial or the parties or witnesses thereto. By the same token, they are essentially neutral with respect to the various groups represented on the venire: the characteristics on which they focus cut across many segments of our society. Thus both blacks and whites may have prior arrest, both rich and poor may have been crime victims, both young and old may have relatives on the police force, both men and women may believe strongly in law and order, and members of any group whatever may alienate a party by ‘bare looks and gestures.’ It follows that peremptory challenges predicated on such reasons do not significantly skew the population mix of the venire in one direction or another; rather, they promote the impartiality of the jury without destroying its representativeness.
“By contrast, when a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds — we may call this ‘group bias’ — and peremptorily strikes all such persons for that reason alone, he not only upsets the demographic balance of the venire but frustrates the primary purpose of the representative cross-section requirement. That purpose, as we have seen, is to achieve an overall impartiality by allowing the interaction of the diverse beliefs and values the jurors bring from their group experiences. Manifestly if jurors are struck simply because they may hold those very beliefs, such interaction becomes impossible and the jury will be dominated by the conscious or unconscious prejudices of the majority. Seen in this light, the presumed group bias that triggered the peremptory challenges against its members is indistinguishable from the group perspective we seek to encourage by the cross-section rule.[]

Although I do not disagree with the California Supreme Court’s analysis, it is not necessary at this time that this Court fashion so broad a rule, i. e., a rule prohibiting peremptory challenges by either the State or the defendant which remove jurors on the sole ground of a cognizable group’s presumed bias. Because of the 1974 Louisiana Constitution’s explicit, absolute ban against discrimination because of race, we need not rely on the impartial jury guarantee or its attendant representative cross-section rule. It is sufficient to curb the prosecutorial practice of exercising peremptory challenges against jurors because of race that we enforce our constitution’s absolute guarantee of equal protection of the law for all races. We need not consider at this time, as California has, whether the broad guarantee of a jury drawn from a representative cross-section prohibits peremptory challenges based on any presumed “group bias.”

Moreover, even if the prohibition of discrimination against persons because of race contained in the 1974 Louisiana Constitution were to be disregarded, the same result should nevertheless be reached in the instant case under the Swain interpretation of the Fourteenth Amendment. As I read Swain, an admission by the prosecutor that he employed peremptory challenges to exclude blacks regardless of trial considerations in the particular case will suffice to raise a prima facie case under the Fourteenth Amendment. This is a logical construction of Swain because the Swain barrier allowing only indirect proof of racial discrimination by evidence of systematic exclusion is justifiable only as a means of protecting the state’s use of peremptories and of preventing trial disruption. In the rare case in which the prosecutor admits to racial exclusion of jurors without legitimate trial-related grounds there is no reason for the defendant to seek a hearing to inquire further into the prosecutor’s motives. Conclusive proof of denial of equal protection is established by the prosecutor’s unrecanted admission.

In the instant case the prosecuting attorney did not deny that blacks were excluded from the petit jury. He attempted to justify this action without evidence by arguing that it was necessary to exclude blacks in order to obtain a fair and impartial jury free from outside pressure. However, our review of the transcript of the voir dire reflects that he made no attempt whatsoever to determine whether potential black jurors might be susceptible to intimidation. Although careful voir dire examination and individualized peremptory challenges of persons who seemed easily susceptible to intimidation may have been justified, in the absence of convincing proof I am unwilling to believe that the blanket exclusion of all black persons was necessary as a reasonable precaution against the danger with which the prosecutor was concerned. It does not appear likely that all prospective black jurors would have been either subjected or susceptible to intimidation. Furthermore, an all-white jury could also threaten the goal of a fair and impartial trial. If radical elements were active in the community, it is possible that a substantial number of prospective white jurors would have been easy targets for intimidation as well. Also, in an atmosphere of racial strife, such as that which surrounded this trial, there is a significant possibility that any white juror who replaced a challenged black venireman would harbor some degree of hostility toward the black defendant. For these reasons I conclude that the prosecuting attorney’s use of peremptory challenges in an attempt to exclude all black persons from the jury cannot be justified even under the Swain rule as a good faith effort to remove persons from the jury who are likely to be partial.

Although I join in the majority opinion, I think this Court also should address itself to the serious violations of both the federal and the state constitutions manifested in the exclusion of black citizens from the jury by the State’s peremptory challenges — not only because Ramond Eames, a black man probably was denied an impartial jury in his trial for a crime involving the killing of two white police officers in an atmosphere of racial strife, but also because other prosecuting attorneys perhaps still labor under the misapprehension that jurors may be peremptorily challenged on the basis of race. In order to dispel any false impression and avoid the needless reversal of future convictions, the stringency of the 1974 Louisiana Constitution’s prohibition against racially discriminatory State action should be expounded upon by this Court. The injury in this case was not limited to the defendant — there also was injury to the jury system, to the law as an institution, to the community in which the trial was held, and to the democratic ideal reflected in our state constitution and in the processes of our courts.

SANDERS, Chief Justice

(dissenting).

The majority correctly recognizes that the Legislature proscribed two separate and distinct crimes in LSA-R.S. 14:329.1 and 14:329.2: participating in a riot and inciting to riot. The majority, however, holds that attempted inciting to riot is an unresponsive verdict. This conclusion is inconsequential as the jury returned a verdict of attempted participation in a riot.

Further, in my opinion, attempted participation in a riot is a responsive verdict. Louisiana Code of Criminal Procedure Article 814 does not contain the responsive verdicts for a charge of participating in a riot. Its Official Revision Comment (b) states:

“R.S. 14:27 merely defines what constitutes an attempt. Therefore the above article does not conflict with R.S. 14:27; it merely omits some attempts as responsive. For all other offenses not enumerated and listed in the above article attempt would be responsive.” [Emphasis supplied.]

Article 815 states that for offenses not provided for in Article 814, guilty, guilty of a lesser and included grade of the offense, and not guilty are responsive verdicts.

An attempt is a separate but lesser grade of the intended crime. LSA-R.S. 14:27C provides:

“An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.”

Clearly, therefore, attempted participation in a riot is a responsive verdict to participation in a riot.

For the reasons assigned, I respectfully dissent.

      . The record reflects that the State used at least six of its twelve peremptory challenges to exclude blacks. Based on his recollection at the time of the hearing on the motions, the trial judge agreed with the defendant’s contentions that all or substantially all of the State’s per-emptories were used to remove blacks from the jury.

      .“ * * * This is not to say that a defendant attacking the prosecutor’s use of peremptory challenges over a period of time need elicit an admission from the prosecutor that discrimination accounted for his rejection of Negroes, any more than a defendant attacking jury selection need obtain such an admission from the jury commissioners. But the defendant must, to pose the issue, show the prosecutor’s systematic use of peremptory challenges against Negroes over a period of time. * * * ” Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759, 776 (1965).

      . 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1925).

      . 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947).

      . 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964).

      . The dissent argues, however, that the Court’s reasoning “overlooks the fact that the total exclusion of Negroes from juries in Talladega County results from the interlocking of an inadequate venire selection system, for which the State concededly is responsible, and the use of peremptory challenges.” 380 U.S. at 241, 85 S.Ct. 824, 847 (Goldberg, J., dissenting).

      . See, Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L.Rev. 235 (1968); Mishkin, The Supreme Court, 1964 Term, 79 Harv.L.Rev. 56 (1965); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966); Note, 75 Yale L.J. 322 (1965); See also, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (Goldberg, J., dissenting).

      . See, Barham, The Peremptory Challenge: A Prosecutorial Strategem to Circumvent Due Process, 1 So.L.Rev. 16, 24 (1975); Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L. Rev. 235, 288 (1968); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966). See also, Swain v. Alabama, 380 U.S. 202, 244, 85 S.Ct. 824, 849, 13 L.Ed.2d 759, 786 (1965) (Goldberg, J., dissenting).

      . See, Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L.Rev. 235, 301 (1968); Mishkin, The Supreme Court, 1964 Term, 79 Harv.L. Rev. 56, 137 (1965); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966).

      . See, Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157, 1170-73 (1966). Cf. Swain v. Alabama, 380 U.S. 202, 244-45, 85 S.Ct. 824, 13 L.Ed.2d 759, 785-86 (1965) (Goldberg, J., dissenting).

      . See, Barham, The Peremptory Challenge: A Prosecutorial Strategem to Circumvent Due Process, 1 So.L.Rev. 16, 26 (1975); Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L. Rev. 235, 290-95 (1966).

      . See Annot., Use of Peremptory Challenge to Exclude from Jury Persons Belonging to a Class or Race, 79 A.L.R.3d 14, 56-73 (1975). But see, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), discussed infra; United States v. McDaniels, 379 F.Supp. 1243 (E.D.La.1974), in which the defendant was granted a new trial in the interest of justice because the government had peremptorily challenged six black jurors despite defendant’s failure to prove a prima facie case of systematic exclusion. See also, California v. Smith, No. 42219 (Alameda County Super.Ct. 1968), an unreported case in which a trial court apparently refused to follow Swain and granted a mistrial because the state used racial peremptories in the case on trial. See, A. Ginger, Jury Selection in Criminal Trials, 518 (1975).

      . State v. Haynes, 339 So.2d 328 (La.1976); see, State v. Reed, 324 So.2d 373 (La.1976); State v. Curry, 319 So.2d 917 (La.1975); State v. Carter, 301 So.2d 612 (La.1974); State v. Veal, 296 So.2d 262 (La.1974); State v. Melton, 296 So.2d 280 (La.1974); State v. McAllister, 285 So.2d 197 (La.1973); State v. Smith, 263 La. 75, 267 So.2d 200 (1972).

      . State v. Haynes, 339 So.2d 328 (La.1976) (Dennis, J., and Tate, J., concurring); State v. Gray, 285 So.2d 199 (La.1973).

      . Although State v. Kelly, 362 So.2d 1071 (La.1978) No. 60,914; State v. Bias, 354 So.2d 1330 (La.1978); State v. Rhodes, 351 So.2d 103 (La.1977); and State v. Sheppard, 350 So.2d 615 (La.1977), were tried after the effective date of the 1974 Louisiana Constitution, our opinions indicate that this state constitutional issue was not raised.

      . Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919).

      . La.Const. art. I, § 17; La.Const. art. I, § 10 (1921); La.Const. art. X (1913); La.Const. art. X (1898); La.Const. art. VIII (1879).

      . Barham, The Peremptory Challenge: A Prosecutorial Strategem to Circumvent Due Process, 1 So.L.Rev. 16, 19 (1975).

      . La.Const. art. I, § 17.

      . La.Const. art. I, § 3 provides:
      “No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

      . Id; State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts Aug. 29, 1973, at 57-77, 80-99; Aug. 30, 1973 at 2-6.

      . State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts Aug. 30, 1973, at 3:
      “The authors believe that there is absolutely no basis for any discrimination of any sort on the basis of, on account of race or religion, but they do believe that there can be discrimination if it is not arbitrary, not capricious, and not unreasonable as far as the other items contained in the original committee report are concerned.
      “The next clause provides that there shall be no discrimination against a person, no discrimination of any sort, on account of ‘race, or religious ideas, beliefs or affiliations.’ ”

        See also, Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 6-10 (1974); Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 9, 17-18 (1975).

      . Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. at 8 (1974): “[T]he provision does not allow the traditional analysis with respect to race or religion. The second sentence (which uses absolute language) . . . permits no discrimination whatsoever with respect to race or religion.”

      . This Court has routinely adopted evidentiary burden rules for the implementation of constitutional and statutory rights. E. g., State v. Franklin, 353 So.2d 1315 (1978); State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966). The adoption of the Swain systematic exclusion formula for determining when peremptory challenges were violative of the 1921 Louisiana Constitution was itself a jurisprudential establishment of an evidentiary burden rule.

      [17] “As a recent commentator aptly put the point in the context of the case at bar, ‘It may be argued that the exclusion of jurors on the basis of group membership would be acceptable where it is believed that, for example, blacks are consistently more biased in favor of acquittal than whites. The argument misses the point of the right to an impartial jury under Taylor [Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690]. Blacks may, in fact, be more inclined to acquit than whites. The tendency might stem from many factors, including sympathy for the economic or social circumstances of the defendant, a feeling that criminal sanctions are frequently too harshly applied, or simply an understandable suspicion of the operations of government. Whites may also be more inclined to convict, particularly of crimes against a white victim. But these tendencies do not stem from individual biases related to the peculiar facts or the particular party at trial, but from differing attitudes toward the administration of justice and the nature of criminal offenses. The representation on juries of these differences in juror attitudes is precisely what the representative cross-section standard elaborated in Taylor is designed to foster.’ (Note, Limiting the Peremptory Challenge: Representation of Groups on Petit Juries (1977) 86 Yale L.J. 1715, 1733, fn. 77.)”

        ti # * *


source: Caselaw Access Project

author: DIXON, J.,

license: Public Domain

text:
    Beth M. FETTY v. COLONIAL BANK.
    No. 63414.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re Beth M. Fetty, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 365 So.2d 44.

Writ denied.

DIXON, J.,

concurs in the denial, agreeing with the concurring opinion.


text:
    ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INC. v. IBERVILLE PARISH POLICE JURY.
    No. 63502.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re Iberville Parish Police Jury applying for writ of certiorari, First Circuit Court of Appeal. Parish of Iberville. 365 So.2d 497.

Granted.

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


text:
    Frank C. BLOSSMAN, Jr. et al. v. Pearl Blossman OLSEN.
    No. 63519.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re Frank C. Blossman, Jr., et al., applying for writ of certiorari, First Circuit Court of Appeal. Parish of St. Tammany. 365 So.2d 545.

Writ denied.

DIXON, J., would grant the writ.


text:
    U. Jens LORENZ et al. v. PLAQUEMINES PARISH COMMISSION COUNCIL.
    No. 63549.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re U. Jens Lorenz, et al., applying for writ of certiorari. Parish of Plaquemines. 365 So.2d 27.

Writ denied. The result is correct.


author: SANDERS, C. J.,

text:
    Hon. Ernest N. MORIAL, Mayor of the City of New Orleans, and Hon. Joseph I. Giarrusso, Councilman at large and President of the Council of the City of New Orleans v. Hon. William J. GUSTE, Jr., Attorney General of the State of Louisiana and Hon. Harry F. Connick, District Attorney for the Parish of Orleans.
    No. 63555.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re Hon. Harry F. Connick, District Attorney for the Parish of Orleans, applying for writ of certiorari, Fourth Circuit Court of Appeal. Orleans Parish. 365 So.2d 289.

Writ denied.

SANDERS, C. J.,

would grant the writ being of the opinion that the issue raised is of such importance that this court should speak on it.


text:
    Honorable Ernest N. MORIAL, Mayor of the City of New Orleans and Honorable Joseph I. Giarrusso, Councilman-at-large and President of the Council of the City of New Orleans v. Honorable William J. GUSTE, Jr., Attorney General of the State of Louisiana, and Hon. Harry Connick, District Attorney for the Parish of Orleans.
    No. 63570.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re Hon. William J. Guste, Jr., Attorney General of the State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 365 So.2d 289.

Writ denied.

SANDERS, C. J.,

would grant the writ being of the opinion that the issue raised is of such importance that this court should speak on it.


text:
    J. Bradley OUBRE v. Marshall HINCHMAN.
    No. 63553.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re J. Bradley Oubre, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 365 So.2d 17.

Writ denied.

SANDERS, C. J., and SUMMERS and DENNIS, JJ., would grant the writ.


text:
    Godfred J. SCHEXNAYDER v. Sheila Granier SCHEXNAYDER.
    No. 63550.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re Godfred J. Schexnayder applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. James. 364 So.2d 1318.

Writ granted.

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


text:
    STATE of Louisiana ex rel. Clarence ALFRED v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63376.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Clarence Alfred applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Richard HANNA v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63523.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Richard Hanna applying for remedial writ. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Ronald YOUNG v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63572.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Ronald Young applying for writs of habeas corpus, certiorari and mandamus. Parish of Orleans.

Writ denied.

CALOGERO and DENNIS, JJ., would grant an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Ray STEVENS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63411.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Ray Stevens applying for writ of certiorari. Parish of Calcasieu.

Writ denied. The application is moot.


text:
    Dale E. McDERMOTT et al. v. Charles E. McDERMOTT et al.
    No. 63568.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Dale E. McDermott, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Cleveland WILLIAMS.
    No. 63283.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Cleveland Williams applying for writ of mandamus. Parish of Orleans.

Writ granted. Trial Judge is ordered to act on the matter before him or show cause within 10 days before this court.


text:
    STATE of Louisiana v. Cleveland WILLIAMS.
    No. 63291.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Cleveland Williams applying for writs of certiorari and mandamus. Orleans Parish.

Writ granted. Trial judge is ordered to act on the matter before him or show cause within 10 days before this Court.


text:
    STATE of Louisiana ex rel. Larry Joe PURKEY v. H. M. Mike CANNON, Clerk, 19th Judicial District Court, et al.
    No. 63456.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Larry Joe Purkey, applying for writ of- mandamus. Parish of East Baton Rouge.

Writ granted and transferred to district court with instruction to act upon the applicant’s request.


text:
    STATE of Louisiana v. Edwin E. CONNOLLY, III.
    No. 63561.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Edwin E. Connolly, III, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ granted. Suppression hearing ordered to be held within ten days.

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


text:
    STATE of Louisiana ex rel. Willie DURKINS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63581.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Willie Durkins applying for writs of certiorari and/or supervisory writs. Parish of Terrebonne.

Granted. The trial judge is ordered to resentence defendant in accordance with law.


text:
    STATE of Louisiana ex rel. James Lee BULLOCK v. Robert M. FLEMING, Judge, 16th Judicial District Court.
    No. 63582.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re James Lee Bullock applying for writ of mandamus. Parish of St. Martin.

Writ granted. Evidentiary hearing ordered.

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


text:
    Edward J. FEIST v. Thomas M. MAESTAS et al.
    No. 63639.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Edward J. Feist, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Gordon L. WEST.
    No. 63624.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Gordon L. West applying for supervisory writs. Parish of Evangeline.

Denied.

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


text:
    STATE of Louisiana v. Curtis ORTEGO.
    No. 63623.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Curtis Ortego applying for supervisory writs. Parish of Evangeline.

Denied.

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


text:
    STATE of Louisiana v. Farris PHILLIPS.
    No. 63629.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for supervisory writs. Orleans Parish.

Denied.


text:
    Charles M. TOLAR v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS.
    No. 63617.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Charles M. Tolar applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Jackson.

Writ denied.


text:
    James T. WILLIAMS and Annie M. Williams v. TOWN OF GRAMBLING.
    No. 63608.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re James T. Williams and Annie M. Williams applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Lincoln.

Writ denied.

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


text:
    Roy Paul DUPRE, as father and natural tutor for and on behalf of the minor child, Alisha Ann Dupre, and as administrator of the estate of the minor child, Alisha Ann Dupre v. STATE of Louisiana, Through the Louisiana DEPT. OF HOSPITALS, etc., et al.
    No. 63586.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Roy Paul Dupre, etc. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Pedro GAONA.
    No. 63612.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Pedro Gaona, applying for writ of habeas corpus and stay order. Parish of Jefferson.

Applicant having received relief from the district court, this application is moot.


text:
    STATE of Louisiana v. Will COOK, Jr.
    No. 63614.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re State of Louisiana through Harry F. Connick, District Attorney, applying for writ of certiorari. Parish of Orleans.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Russell E. WYMAN v. Hon. Oliver SCHULINGKAMP, Judge.
    No. 63593.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Russell E. Wyman applying for supervisory and remedial writs. Orleans Parish.

Writ denied. Trial Judge ruled on application December 16, 1977. The matter is moot.


text:
    STATE of Louisiana ex rel. Nathan WALKER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63575.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Nathan Walker, applying for writ of habeas corpus. Parish of Lincoln.

Writ denied for reasons stated by trial judge.


text:
    STATE of Louisiana ex rel. Bennie “Idi” HICKS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63298.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re Bennie “Idi” Hicks applying for writ of habeas corpus and remedial writs of certiorari. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Sherry QUEZADA.
    No. 63351.
    Supreme Court of Louisiana.
    Jan. 12, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans.

Writ denied.

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


author: JONES, Judge.

text:
    William M. BENARD, Plaintiff-Appellee, v. BRADLEY AUTOMOTIVE et al., Defendant-Appellant.
    No. 13691.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Neil Martin Trichel, Shreveport, James F. McGovern, Minneapolis, Minn., for defendant-appellant.
    Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant, Bradley Automotive, a division of Thor Corporation (Bradley is a trade name), and Thor Corporation appeal a judgment rendered against it in favor of the plaintiff, William M. Benard, for $12,960. The amount of the judgment included $9,885, the purchase price of a Bradley GT II sports ear, the sale of which was rescinded in the judgment, $400 freight for delivery of the vehicle from Pennsylvania to Shreveport, Louisiana, and $2,675 attorney fees.

Plaintiff answers the appeal seeking an increase in the judgment of $1,500 to cover cost of attorney fees expended on appeal.

We grant an increase in the plaintiff’s attorney fees in the amount of $1,000 and as amended, affirm the judgment.

In February of 1977, plaintiff saw a Bradley Automotive advertisement and telephoned Bradley via a toll free number seeking information on the purchase of a fully assembled Bradley sports car for his daughter. Plaintiff spoke with Mike Carr, the regional sales manager for Bradley, concerning the purchase. Pursuant to this conversation, plaintiff sent a letter to Bradley enclosing a down payment of $750 on the Bradley GT II. Plaintiff specified he wanted all equipment professionally installed and the automobile ready to drive upon receipt in Shreveport.

During the negotiations which preceded plaintiff’s letter to Bradley of February 25, he was aware that Bradley was in the business of selling unassembled automobiles. Plaintiff also believed Bradley sold assembled vehicles including the body, engine and chassis. He had received a direct communication from Bradley in the form of a phona-gram which provided:

“Bradley Automotive will deliver an all new 1977 VW chassis and engine for as low as $110 per month . . . Performance and handling of a Bradley GT II on all new VW chassis is absolutely outstanding. The value of your GT will approximately double when everything is totally new. Hurry. Call your Bradley salesman today. Toll free 800-328-7141”.

Plaintiff testified he advised Carr in their numerous telephone conversations that he was only interested in purchasing a fully assembled Bradley GT II automobile and that Carr advised plaintiff that Bradley would provide him with the vehicle. On April 20 Benard sent one bank money order payable to Bradley Automotive in the amount of $6,085 and another bank money order payable to GAP Imports Inc., a Bradley affiliate, in the amount of $1,100, both in one letter addressed to Bradley. Plaintiff sent these money orders in the manner directed by Carr and in this letter stated “upon receipt of the enclosed, I would appreciate your advising the time table for the completion of my automobile and its subsequent delivery to Shreveport”, thereby reiterating his expectation of his receiving a completed Bradley GT II from the defendant.

On April 29, 1977, plaintiff received a phone call from Carr advising him that Bradley was shipping the pre-assembled GT II and other component parts of the automobile to Bob Ashcraft of Butler, Pennsylvania, who was to assemble the car upon a chassis and instructing plaintiff to send Ashcraft a check for $1,950 to cover the remaining cost of the vehicle. In response to this telephone conversation, plaintiff sent Ashcraft a bank money order for $1,950.

The automobile shipped to Shreveport by Ashcraft arrived on June 2. During the next few days, Benard noticed the following defects: (1) top of the car was bowed down, (2) the wing-type doors and hatchback doors did not fit the door openings, leaving gaps of 1 to IV2 inches, the plaintiff attempted to close the door and one of the windows broke out, (3) gaps of 1 to lVi inches between the glass and fiberglass body, (4) leather around the gear shift was too loose, (5) when the car was driven over 25 MPH it shimmied and the steering wheel was hard to control, (6) car leaked when it rained, (7) hinges on back glass of car were loose, (8) pull didn’t release hatchback door and (9) plaintiff, after having driven the car approximately 15 to 20 miles, started the motor to show it to his son and the motor developed a loud clanging noise and upon inspection, a bolt had become disconnected from the crankshaft and parts of the motor had fallen to the ground.

Plaintiff called the service manager at the Clements Lincoln dealership to look at the car when a part of the motor fell off. The service manager worked on the car two hours before he could drive it to the dealership where it has since been stored and not used.

On June 23, plaintiff telephoned Bradley’s custom service department regarding the defects and the evaluation of the condition of the automobile by the Clements service manager. On June 24, Benard received a letter from Peggy Klingenberg, Customer Service Manager of Bradley, listing the repairs needed pursuant to the telephone conversation and stating “we will repair or replace any defects in workmanship or materials”. Klingenberg requested plaintiff to call Bradley’s toll free number to arrange for Bradley to pick up the automobile. Plaintiff had no further communications with defendant and filed this suit for redhibition on July 20, 1977.

The issues on appeal are: (1) did Bradley sell plaintiff a sports ear or only a pre-as-sembled Bradley GT II exclusive of a VW engine and chassis with the engine having been purchased from a separate Bradley affiliate and the chassis and the total assemblage of the vehicle having been acquired from Ashcraft? (2) is Bradley a good faith seller or a manufacturer who is not entitled to an opportunity to repair as a condition precedent to a suit for redhibition and who is presumed to know the defects in the product sold and therefore liable for attorney fees, expenses of the sale and damages? and (3) did the trial court err by deciding the case before the transcript had been prepared?

Bradley contends it is in the business of selling either a Bradley car kit, which the customer assembles, or a pre-assembled car kit, both of which exclude the Volkswagen engine, Volkswagen chassis and the attachment of the chassis to the Bradley fiberglass body. GAP Imports, a Bradley affiliate, imports and sells Volkswagen engines and chassis. Bradley asserts Bob Ashcraft of Custom Cars is an independent builder of kit cars, who is one of several builders to whom Bradley refers customer who want to buy a completed automobile for assemblage of the Bradley body onto a chassis. Bradley contends there were three separate sales to Benard, one by it for the pre-assembled Bradley GT II, one for the VW engine from GAP imports, and one for the VW chassis and assemblage of the VW chassis and Bradley GT II with Ashcraft’s Custom Cars. The Bradley invoice sent to Benard shows the car included a Bradley GT II pre-assem-bled, wire wheels, tires, air conditioner and AM/FM 8 tract stereo for a total of $6,835. The GAP Imports, Inc. invoice was for one 1977 VW engine for $1,100. Ashcraft’s Custom Cars invoice for a Bradley GT II completed was for $1,950 and transportation charge of $400.

Plaintiff testified that he advised Carr that he was unmechanical and that he wanted to buy a completed automobile and that Carr advised him that was what he could expect. Plaintiff’s testimony is corroborated by his letters to Bradley of February 25 and April 20. The fact that he was requested by Carr to send a separate check for the engine payable to GAP Imports and a separate check to Ashcraft for the chassis does not detract from plaintiff’s understanding that he was purchasing a completed vehicle from Bradley. The manner in which Bradley put the package together was totally immaterial to plaintiff. Benard had every reason to believe that Bradley was capable and willing to deliver the engine and the chassis along with the other component parts of the car, by virtue of the advertisement he had received following his initial conversation with Carr, hereinabove quoted, wherein Bradley specifically offered to deliver the chassis and engine.

On the trial of this case, the defendant did not offer as a witness its regional sales manager Mike Carr to rebut Benard’s testimony that Carr had agreed to deliver him a finished automobile. Defendant’s exhibit D-5 contained the original letters from plaintiff of February 25 and April 20, which unequivocally advised Bradley of plaintiff’s expectation of a complete automobile from it. Bradley had accepted the checks contained within these letters.

The initial Bradley Automotive order form which was sent to plaintiff and which he returned with the $750 down payment reflected that the VW engine was being provided by Bradley. Ashcraft’s invoice entitled Custom Cars, Division of Rameo Enterprise, which plaintiff was first presented on June 2 when the car was delivered, reflected the total charge of $2,350, showing a credit of $1,950 with the balance of $400 being for the freight for delivery of the vehicle from Butler, Pennsylvania to Shreveport, Louisiana. This invoice contains Bradley’s logo in the right hand corner of it which was an indication to plaintiff that there was nothing unusual about his making payment for the chassis’ final assemblage and freight on his completed vehicle to this company and that such a transaction and payment did not change his initial understanding that he was purchasing from Bradley a completed automobile. At the time plaintiff paid Ashcraft the $1,950, he had already sent Bradley the total sum of $7,935.00 on the purchase price of his GT II and at the time of delivery of his car by Ashcraft Custom Cars and receipt of the invoice, he paid the remaining balance of $400 on the invoice for freight.

Considering the totality of these circumstances, we find that the record supports the trial judge’s factual determination that there was a sale by defendant to plaintiff of a completed Bradley GT II vehicle.

Defendant does not deny on appeal that the vehicle is subject to defects, but takes the position that the vehicle as assembled by them, exclusive of the engine and chassis, had no defects at the time it was shipped by it to Ashcraft. This position is of no comfort to it in light of our affirmance of the trial judge’s finding that defendant made a sale of the total unit. We, however, observe that the evidence established substantial defects in the body of the vehicle in the form of poor fitting doors, windows and windshield, which created water leaks at all of these points, and danger of infiltration of exhaust fumes through the rear window and hatchback door. The evidence establishes that these defects were in the fiberglass body made and assembled by Bradley. These defects were such as would have justified rescission of the sale of the pre-assembled GT II kit which Bradley contends was the only thing it sold plaintiff. Bradley, as a manufacturer of the pre-assembled kits is presumed to know the defects and would therefore be liable, not only for the restitution of the price of the pre-assembled GT II kit, but also for repayment of expenses and damages. C.C. Article 2545. Plaintiff’s expenses and damages would have included the sums paid by him to GAP Imports and Bob Ashcraft Custom Cars because these expenditures would not have made available to him a functional sports car and therefore would have been a total loss. See Rey v. Cuccia, 298 So.2d 840 (La.1974) where recovery for the installation of a trailer hitch was allowed as damages in connection with the rescission of the sale of a camper trailer. See Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955) where lost profits, storage and transfer expenses .were allowed as damages and expenses in connection with the rescission of the sale of two air conditioning units. See Baughman v. Quality Mobile Homes, Inc., 289 So.2d 376 (La.App. 1st Cir. 1973) where $2,504.58 finance charges, sales taxes and other fees of $935.00 were allowed as damages and expenses in connection with the rescission of the sale of a motor home.

Bradley contends plaintiff cannot rescind the sale according to Article 2531 because Benard did not tender the car to Bradley to repair as requested in Bradley’s letter. C.C. Article 2531 gives the seller of an automobile who does not know of defects a chance to repair before an action in redhibition can be brought.

As manufacturer, Bradley is presumed to know the defects in the thing. Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978). Therefore, the article applicable to manufacturers is Article 2545, not Article 2531. Ritter v. Leigh & Wiggins, Inc., 337 So.2d 281 (La.App. 2d Cir. 1976).

A purchaser is not required to give a manufacturer a chance to repair before instituting an action in redhibition. Burns v. Lamar-Lane Chevrolet, 354 So.2d 620 (La.App. 1st Cir. 1977).

We find that the trial court properly gave judgment to plaintiff for the purchase price of the sports car, transportation expenses and attorneys’ fees. On appeal plaintiff asks for an increase in attorneys’ fees of $1,500. We find an increase in attorneys’ fees of $1,000 will adequately compensate plaintiff’s attorney for services rendered on appeal.

Defendant asserts it was error for the trial court to decide the case before the transcript was prepared. The trial court ordered plaintiff to file post-hearing briefs within ten days, and ordered the defendant to file its brief ten days following the filing of plaintiff’s brief. LSA—R.S. 13:4207.1(a) allows the court in an exceptional case, one in which the transcript is deemed essential, to order the transcript prepared within 30 days. Nothing in the record indicates the trial court considered the transcript essential and there was no error in the trial court’s refusal to order the transcript prepared before the briefs were due and before it decided the case.

For the reasons assigned, we award plaintiff additional attorneys’ fees in the amount of $1,000 for services of his attorney rendered on appeal, together with seven percent (7%) per annum interest thereon from date of this judgment, and as amended, AFFIRM the judgment of the trial court. Defendant is cast for all costs.

      . February 25, 1977
      “Mr. Mike Can-
      Regional Sales Manager
      Bradley Automotive
      495 Shelard Plaza
      400 County Road 18 South
      Minneapolis, Minn. 55426
      Dear Mike:
      I enjoyed talking with you today and in accord with our conversation, am enclosing my check in the amount of $750, which represents the down payment on the Bradley GT II I ordered. It is understood that the car will have the following equipment:
      (1) Mag wire wheels
      (2) Radial Tires
      (3) Four season factory air conditioner
      (4) New VW engine
      (5) All deluxe assessories, including vent windows
      (6) A deluxe AM/FM stereo radio with tape deck
      (7) The Bradley GT II executive option group assembled
      In other words, I want this car to have the very best equipment you have to offer and I want it professionally installed and ready to drive upon receipt in Shreveport. Upon receipt of the attached check, I would appreciate your confirming and providing me with a list of the equipment which is to be included and installed as part of our arrangement, by return mail.
      With best personal regards.
      Yours very truly,
      Bill /s
      W. M. Benard
      WMB/cjg”

      . April 20, 1977
      “Mr. Mike Can-
      Regional Sales Manager
      Bradley Automotive
      495 Shelard
      400 County Road 18 South
      Minneapolis, Minn. 55426
      Dear Mike:
      In compliance with the telephone call I received this week, I am enclosing a Bank Money Order in the amount of $6,085, representing the balance due you on my Bradley GT II. I am also enclosing a $1,100.00 Bank Money Order payable to G.A.P. Imports to pay in full the cost of the engine and chassis. Upon receipt of the enclosed I would appreciate you advising the time table for the completion of my automobile and it’s subsequent delivery to Shreveport. With best personal regards.
      Yours very truly,
      Bill /s
      W. M. Benard
      WMB/cjg
      Enclosures”

      . Bradley contends it is a seller of car kits and not a manufacturer because it buys the component parts from various vendors which are then packaged by Bradley Automotive. Bradley holds itself out as a manufacturer in its sales brochure for the pre-assembled Bradley GT II stating “trained craftsmen in our assembly department precisely fit together every component part, right down to the nuts, bolts, upholstery and gauges. Lastly, the light-weight, rust-proof Bradley fiberglass body is manufactured with precision and care in the universal plant adjoining the center.”
      The Bradley logo appears on the front of Bradley automobiles. When a seller labels a manufacturer’s product as his own, he holds himself out to the public as a manufacturer, and such status is imputed to him. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978); Penn v. Inferno Manufacturing Corporation, 199 So.2d 210 (La.App. 1st Cir. 1967); Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972).

      . C.C. Art. 2545—“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

      . C.C. Article 2531—“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
      In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”


author: HALL, Judge.

text:
    Roosevelt HUGHES, Plaintiff-Appellant, v. Terry L. COX et al., Defendants-Appellants-Appellees.
    No. 13721.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.

      C. William Gerhardt, Shreveport, for plaintiff-appellant, Roosevelt Hughes. ■
    Nelson & Achee, Ltd. by Roland J. Áchee, Shreveport, for defendant-appellant-appel-lee, Fidelity & Cas. Co. of New York.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants-ap-pellees, C. L. Morris, Ray Iverson and Nat. Indem. Co.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendants-appellees, Terry L. Cox and State Farm Auto. Ins. Co.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

This suit for damages arose out of a three-car collision which occurred on October 23, 1974 at the intersection of Spring and Texas Streets in Shreveport. All three vehicles were headed north on Spring. Plaintiff Hughes’ vehicle, stopped for a red light at the intersection, was struck from the rear by Cox’s vehicle which was struck from the rear by Iverson’s vehicle. The trial court found the accident was caused solely by the negligence of Cox. Judgment was rendered in favor of plaintiff against Cox and his insurer, State Farm Mutual Automobile Insurance Company, for $8,823.20. Plaintiff’s demands against Iver-son, his employer C. L. Morris, and their insurer, National Indemnity Company, were rejected. Plaintiff’s demand against his uninsured/underinsured motorists insurer, Fidelity & Casualty Company of New York, were also rejected since the award was within State Farm’s policy limits of $10,000.

Plaintiff appealed complaining of quantum. Fidelity & Casualty appealed complaining of the trial court’s failure to find Iverson negligent. Cox and State Farm answered the appeal claiming the accident was caused solely by Iverson’s negligence and, alternatively, by the joint negligence of Cox and Iverson. We affirm on liability and increase the award for damages, which has the effect of casting Fidelity & Casualty for the excess over $10,000.

The trial court’s findings on negligence, which are supported by the evidence and which we adopt, are as follows:

“. . . The Court finds this accident occurred solely from the negligence of defendant, Terry L. Cox. The Hughes’ vehicle was in the 2d from left lane, authorized to turn left or go straight. Some distance to the rear and in the same lane was a large truck owned by defendant, C. L. Morris, and operated by defendant, Ray Iverson. Cox was in the left lane, authorized only to turn left. Wanting to go .straight, Cox changed lanes at the last moment, cutting in front of Iverson and creating the situation which caused the accident. The Court holds that Ray Iverson is free from fault, his actions in no way contributing to the cause of this accident. . . . ”

Plaintiff does not complain on appeal of the trial court’s finding that Iverson was free from fault. State Farm and Fidelity & Casualty contend that Iverson was negligent in driving too fast under the circumstances and that he would not have been able to stop without striking plaintiff even if Cox had not changed lanes. The contention is speculative and without substantial support in the record. The evidence supports the trial court’s finding that the accident was caused solely by the negligence of Cox and that Iverson was free from negligence.

The trial court’s findings on plaintiff’s injuries, which are supported by the evidence and which we adopt, are as follows:

“The difficult question for the Court to decide is quantum. Hughes had 3 accidents and 3 injuries prior to this accident: a lifting injury on the job in 1971; a pedestrian-auto accident while on the job in 1973; and a job-related auto accident in 1974.
“Regardless of the number of prior injuries, the medical testimony is clear; at the time of the 1975 accident, Hughes was suffering from a permanent disability of the body as a whole of 35%.
“Also, it is undisputed that the 1975 accident caused an additional 5% permanent disability of the body as a whole. The following facts relate to the injuries from the accident and the additional 5% disability-
“Hughes was placed on medication and will have to continue this treatment for the remainder of his life. Dr. Dean prescribed a neck collar and back brace. He had plaintiff performing exercises and utilizing a neck traction device set up in a doorway at home. In addition to 39 physical therapy sessions at Warrington Plaza Therapy Center, Hughes, made approximately 17 visits to Dr. Dean.
“In March of 1977, Hughes spent 6 days at Schumpert Medical Center for myelo-gram testing. No surgery was recommended following this testing and in April, Dr. Winston Brown examined Hughes, finding no nerve root irritation. Dr. Dean’s final diagnosis upon Hughes’ release from Schumpert was ‘cervical spondylosis with some disc protrusion at the C3 — C4, and C4— C5 interspace on the left.’ See Exhibit P — 5, Page 3. Cervical spondylosis is defined as abnormal immobility and consolidation of a vertebral joint in the neck.
“On January 11, 1978, Hughes reached maximum improvement and was discharged by Dr. Dean. On February 1, 1978, Hughes retired, but testified he still works about 6 hours a day.
“Plaintiff’s testimony was that he was working and was free from pain at the time of the 1975 accident. However, it is noted he saw one of Dr. Dean’s partners about 2 months before this accident and, at that time, was still experiencing soreness from the May 29, 1974, accident. See P-3, progress report dated August 25, 1975. He was to be ‘checked back’ around the time of the current accident.
“While the Court finds that Hughes continues to experience some pain at this time, it is to be noted that from the accident on October 23,1975, until retirement on February 1,1978, plaintiff missed work only the 6 days he was in Schumpert. Additionally, he worked 2 shifts daily, IIV2 hours, until his retirement . . . .”

The trial court awarded plaintiff $5,000 for his personal injuries and $3,823.20 for special damages, which included $1,200 for future medicine expense.

The award of $5,000 for general damages is clearly on the low side. It is a close call on whether the award is so low as to be below the range of the trial court’s much discretion. The trial court obviously did not fully accept plaintiff’s testimony that he had completely recovered from the third accident and resulting cervical disc surgery, in light of his complaint of soreness about two months prior to the last accident and since he had not yet been discharged from treatment of the prior injury. In view of plaintiff’s age (62 at the time of the accident) and prior injuries, his continued pain (past, present and future) was and is not necessarily fully attributable to the last accident. Another minimizing factor is the fact that plaintiff never missed a day of work after the accident, except six days while he was in the hospital for the myelogram.

Giving weight to the minimizing factors noted above and giving weight to the discretion of the able trial judge, this court nevertheless finds the award too low. The trial court found that as a result of the accident, plaintiff was under treatment for over two years. He was required to wear a neck collar and a back brace. He was required to do exercises and use traction at home. He underwent 39 therapy treatments, made 17 visits to his treating physician, and spent six days in the hospital undergoing a myelogram. He has a 5 percent additional permanent disability attributable to this accident. The cervical sprain received in the accident aggravated plaintiff’s preexisting condition, with the final diagnosis of plaintiff’s condition being cervical spondylosis with some disc protrusion at two levels. Plaintiff will be required to take pain medication for the remainder of his life. Plaintiff had incurred medical expenses at the time of trial of about $2,500.

All three judges of this panel agree that considering the facts found by the trial court, the minimizing factors noted by the trial court, and similar cases as guidelines, each would award at least $7,500 for general damages. Based on the collective judgment of the panel, we conclude $7,500 represents the lowest amount within the range of discretion and increase the award to that amount.

Appellate review of relatively small damage awards is difficult. The appellate court may believe the trial court’s award is too low or too high; yet to decrease or increase the award to the low or high range of discretion may not involve many dollars, and, consequently, may appear to be “nitpicking” the trial court’s discretion. Still, relatively small awards must be reviewed under the same standards as larger awards and where the dollar amount awarded falls below or above what the appellate court views as the range of discretion, an adjustment must be made.

Plaintiff also contends that it was established that plaintiff had spent an average of $21.44 per month for medicine and based on his life expectancy the award for future medicine expense should be $2,855.81 rather than $1,200 as awarded by the trial court. Although the average figure for medicine expense over the previous two-year period is correct, the evidence does not establish with precision the exact amount per month that plaintiff is presently spending or will spend in the future for medicine. The award of $1,200 is reasonable under the evidence and will not be disturbed.

The modification made by this court increases the total award to $11,323.20. State Farm’s policy limit is $10,000. The excess falls on the uninsured/underinsured motorists carrier, Fidelity & Casualty: Cox is liable for the full amount in solido with the insurance companies.

Fidelity & Casualty argues that it should be entitled to the proceeds of plaintiff’s judgment against Cox and State Farm to the extent of its liability to plaintiff under subrogation provisions of the policy and LSA-R.S. 22:1406 D(4). To allow the uninsured motorists insurer such recovery out of the judgment proceeds up to the tort-feasor’s policy limits would render its underinsured motorists coverage under LSA-R.S. 22:1406 D(2)(b) nugatory and meaningless. Whitten v. Empire Fire & Marine Ins. Co., 353 So.2d 1071 (La.App. 2d Cir. 1977). Fidelity & Casualty is entitled to the proceeds of plaintiff’s judgment over and above the amount of the liability coverage, $10,000, to the extent of any payment made by Fidelity & Casualty to plaintiff under the uninsured motorist coverage and the judgment against it rendered herein.

For the reasons assigned, the judgment of the district court is .modified and recast as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Roosevelt Hughes, in the amount of $11,-323.20, together with legal interest thereon from date of judicial demand until paid,, against the defendants as follows:

(1) Against defendant, Terry L. Cox, for the full amount of the judgment, in solido with the insurance companies against whom judgment is also rendered;

(2) Against defendant, State Farm Mutual Automobile Insurance Company, in the amount of $10,000, plus legal interest thereon;

(3) Against defendant, Fidelity & Casualty Company of New York, in the amount of $1,323.20, plus legal interest thereon, said insurance company being entitled to the proceeds of the judgment against Terry L. Cox over and above $10,000 plus legal interest to the extent of any payment made by said insurance company hereunder.

Defendants, Terry L. Cox and State Farm Mutual Automobile Insurance Company, shall have credit for the amount of $9,772.47 paid into the registry of the court on May 5, 1978.

Plaintiffs demands against C. L. Morris, Ray Iverson, and National Indemnity Company are rejected and dismissed.

All costs of this proceeding, including the cost of appeal, are assessed against defendants, Terry L. Cox and State Farm Mutual Automobile Insurance Company, in solido.

Modified and recast.