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

text:
    James A. MOREAU v. Richard A. TONRY et al.
    No. 58747.
    Supreme Court of Louisiana.
    Oct. 13, 1976.
    Dissenting Opinions Oct. 15, 1976 and Oct. 18, 1976.
    On Motion To Appoint Judge Nov. 8, 1976.
    T. M. McBride, III, Chalmette, Martzell & Montero, John R. Martzell, New Orleans, for plaintiff-relator.
    Gilbert Y. Andry, III, Sidney Provensal, Jr., New Orleans, Luke A. Petrovich, Buras, Gibson Tucker, Jr., New Orleans, for defendants-respondents.
   ORDER

The motion to appoint a district judge from outside the Twenty-Fifth Judicial District is granted, pursuant to C.C.P. 158.

IT IS ORDERED that Judge Melvin A. Shortess be and is hereby appointed to try and to decide this case in the Twenty-Fifth Judicial District.

IT IS FURTHER ORDERED that absentee voting in the election for Congressman for the First Congressional District of Louisiana be delayed until further orders of this Court.

Given under our hands and seal this 13th day of October, 1976.

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

SUMMERS, J., dissents and assigns reason.

SUMMERS, Justice

(dissenting).

I dissent from this Court’s order of October 13, 1976, vacating the appointment of Judge Eugene E. Leon, who was properly appointed judge ad hoc to substitute for Judge August A. Nobile, Jr., the latter hav-. ing voluntarily recused himself. This action was taken upon the bare conclusory allegation that Judge Leon belonged to a political faction and because he continued the trial then in progress without beginning anew.

There is not one scintilla of evidence in this record to support the allegation that Judge Leon is a party to the political faction mentioned, nor is evidence in the record that it would affect his judgment in the case.

As to the allegation that he proceeded with the trial of the case then in progress, there is no legal objection to this procedure under the circumstances of this election contest where time limitations make prompt action imperative. In State v. Henderson, 243 La. 233, 142 So.2d 407 (1962), we held that the substitution of judges during a criminal trial after verdict was not improper when the circumstances made that action necessary. See also State v. McClain, 194 La. 605,194 So. 563 (1940). In the case at bar, as in the Henderson case, the evidence received prior to Judge Leon’s appointment was all recorded and was being transcribed as the case progressed. All of this would be readily available for his consideration.

In my view it was improper for this Court to vacate Judge Leon’s appointment under these circumstances. Not only will the record fail to support the Court’s action, but the Court’s order tends to reflect adversely on Judge Leon’s impartiality without a showing that he deserves such treatment.

Equally as important is the fact that no ground for recusation provided by law has been established. These are explicitly set forth in Article 151 of the Code of Civil Procedure:

“A judge of any court, trial or appellate, may be recused when he:
(1) Is a material witness in the cause;
(2) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(3) Has performed a judicial act in the cause in another court;
(4) Is the spouse of a party, or of an attorney employed in the cause; or is related to a party, or to the spouse of a party, within the fourth degree; or is related to an attorney employed in the cause, or to the spouse of the attorney, within the second degree; or
(5) Is interested in the cause.
In any cause in which the state, or a political subdivision thereof, or a religious body or corporation is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a ground for recusation.”

While this Court is empowered by Article 158 of the Code to appoint another district judge if it is deemed “in the interest of justice”, I cannot agree that this action qualifies under that authority. To the contrary, I consider it disruptive of the orderly processes of justice to unseat a judge otherwise properly appointed in his own district upon such nebulous and unfounded charges.

I respectfully dissent.

SANDERS, Chief Justice

(dissenting).

James A. Moreau, a candidate for congressional nomination by the Democratic Party, filed suit against his opponent, Richard A. Tonry, contesting the outcome of the Democratic primary based on allegations of fraudulent election practices. Under established procedure, the suit was allotted to Judge August J. Nobile, Jr., of the Twenty-Fifth Judicial District Court for St. Bernard Parish. Tonry filed a motion to recuse the trial judge. The trial judge overruled the motion and continued the trial of the summary proceeding. Ultimately, after the trial was well advanced, the Fourth Circuit Court of Appeal ruled that the motion to recuse set forth a valid ground for recusal, justifying a recusal hearing before another judge. Apparently to avoid interruption of the election contest, the trial judge then recused himself and appointed Judge Eugene E. Leon, Jr., of the same judicial district to hear the case.

The defendant filed no motion to recuse Judge Leon in the trial court. Instead, defendant filed in this Court a motion to appoint another judge to hear the case.

The majority has granted the motion to appoint a judge to hear the case, which has the effect of disqualifying Judge Leon. I disagree.

The appointment of Judge Leon to try the case was in strict compliance with our procedural law. Article 157 of the Louisiana Code of Civil Procedure specifically provides:

“After a trial judge recuses himself he shall appoint a judge ad hoc to try the cause in the manner provided by Articles 155 and 156 for the appointment of a judge ad hoc to try the motion to recuse.”

Since the appointment was properly made, the question then becomes whether or not there are ample grounds to appoint another judge. In this connection, Article 158 of the Louisiana Code of Civil Procedure provides:

“In a cause in which the district judge is recused, even when a judge ad hoc has been appointed for the trial of the cause under Article 157, a party may apply to the supreme court for the appointment of another district judge as judge ad hoc to try the cause. If the supreme court deems it in the interest of justice, such appointment shall be made.”

By its terms, this article requires an adequate showing that a new appointment is “in the interest of justice.”

No such showing has been made in the present case. There was no offer of evidence in the trial court of bias, prejudice, or other factors that would prevent the judge from conducting a fair hearing.

The allegations of the motion filed here are unsupported. Moreover, they refer only to the mover’s “suspicions of an improper and injudicious interest in the case.” Suspicions of litigants, of course, provide no judicial basis for disqualifying a judge or appointing another in his place.

The only substantial factual allegation in the motion is that the judge resumed the trial at the point where his predecessor had recused himself. Apparently, the trial judge did not undertake to rehear the testimony of prior witnesses because of a suspected legal deadline for the conclusion of the election contest. Instead, he announced that he would rely on the transcribed testimony. There is authority supporting this procedure. See State v. Henderson, 243 La. 233, 142 So.2d 407 (1962). In no event, however, is the procedure an adequate ground for disqualification of the judge. If a different procedure will better serve the interest of justice, this Court can order it without interruption of the orderly proceedings in the trial court.

I do not believe that the disqualification of a duly elected judge on scanty and unsupported allegations is in the interest of the administration of justice. It has the effect of allowing a litigant under these circumstances to challenge a judge without cause.

For the reasons assigned, I respectfully dissent.

ON MOTION TO APPOINT JUDGE

DIXON, Justice.

On the morning of the trial of an election contest the defendant, Richard A. Tonry, apparent winner of the contested election, filed a motion to recuse the trial judge. Interest in the cause on account of political associations with one of the factions in the election, a valid ground for recusation, C.C.P. 151, was the basis of the motion.

In spite of the provisions of C.C.P. 154 (“If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge . . .”), the trial judge, himself, denied the motion. On application to the Court of Appeal, Fourth Circuit, that court ordered the trial judge to refer immediately to another judge the motion to re-cuse.

The trial judge, Judge August A. Nobile, Jr., then appointed another judge of the district, Judge Eugene E. Leon, to try the motion. Instead, the plaintiff announced that he would not oppose the recusal of Judge Nobile. Judge Leon thereupon undertook to hear evidence on the merits of the case then in progress. It was then about 4:30 in the afternoon. Rulings on the admission of much deposition evidence and the taking of oral testimony had occurred that morning and afternoon. Judge Leon had not been present.

That evening defendant applied to this court for the appointment of another judge “in the interest of justice.” C.C.P. 158. In response to inquiry from this court Judge Leon stated that he did not have before him the evidence taken before Judge Nobile that morning, and that he “did not expect to finish before one minute to midnight,” an apparent reference to the holding of Downs v. Pharis, 240 La. 580, 124 So.2d 553 (1960). Downs v. Pharis had held that, if an election contest suit is not finally decided before the time fixed by statute for the printing of absentee ballots (now twenty days before the election), the contest “abates.” As a matter of fact, neither side has, in subsequent proceedings before this court, sought refuge in that decision. In the district court, however, plaintiff relied on Downs v. Pharis, interpreting it to end an election contest suit “in favor of the party who is at that time the apparent winner.”

We stayed the proceedings on the night of October 12 and ordered plaintiff to show cause at 9:00 o’clock the next morning why a judge ad hoc should not be appointed. After argument we appointed Judge Melvin Shortess of the Nineteenth Judicial District, Baton Rouge, to try the case.

C.C.P. 158 is the statutory basis for review of the appointment of a judge in the event of recusal of a district judge. The source provision appears as Article 342.2 of Dart’s Code of Practice, which, in turn was taken from Act 40 of 1880, as amended. Further, in 1948, Act 336 amended C.P. 341 to provide, in language almost identical to that of C.C.P. 158:

“In any cause where the district judge shall be recused, even where another judge or judge ad hoc has been appointed under Article 340, any party to the cause may apply to the supreme court for the appointment instead of another district judge; and if the supreme court deems it conducive to the interests of justice, such appointment shall be made.”

Three Louisiana cases have been located in which more than one judge at the trial level acted in the case. State v. Henderson, 243 La. 233, 142 So.2d 407 (1962); State v. McClain, 194 La. 605, 194 So. 563 (1940); State v. Barret, 151 La. 52, 91 So. 543 (1922).

In State v. Henderson, the trial judge died in the interval between the trial at which defendant was convicted and the determination of a motion in arrest of judgment and a motion for a new trial. These motions were decided by a successor judge. In State v. McClain, a substitute judge presided at the selection of the jury; the regular judge completed the case. In State v. Barret, the defendant was sentenced by a judge who succeeded the judge before whom trial was held. (The sentencing judge had also presided at a former trial which resulted in a mistrial).

In none of these cases was error found. Nevertheless, as was recognized in State v. McClain:

“In short, the general rule is that it is reversible error to substitute a judge to preside over the remainder of a trial after evidence has been adduced before the original judge. The basis for this holding is that the second or substituted judge, not being familiar with the prior testimony or evidence, is not in a position to give the accused a fair and impartial trial as is contemplated by law. . . . ” 194 So. 563, 565.

Under the circumstances existing in the case before us, in which a new judge, named by the first judge to try, upon the order of the Court of Appeal, the motion to recuse the first judge, undertook to take up the case in the middle of its course in spite of the timely objections of the defendant, it is clear, without further explanation, that the interest of justice required that another judge be appointed to try the case.

For these reasons, the writs were granted and the order was issued on October 13, 1976:

“The motion to appoint a district judge from outside the Twenty-Fifth Judicial District is granted, pursuant to C.C.P. 158.
“IT IS ORDERED that Judge Melvin A. Shortess be and is hereby appointed to try and to decide this case in the Twenty-Fifth Judicial District.
“IT IS FURTHER ORDERED that absentee voting in the election for Congressman for the First Congressional District of Louisiana be delayed until further orders of this Court.”

(The order delaying absentee voting was recalled upon the decision of another writ granted in this case (our No. 58791) on October 22, 1976).


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    CITY OF NEW ORLEANS, Plaintiff-Appellee, v. MARK C. SMITH AND SONS, INC. and American Employers Insurance Company, Defendants-Appellants.
    No. 57903.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    John I. Hulse, IV, Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Stephen J. Caire, R. Louis Carruth, Asst. At-tys. Gen., Philip S. Brooks, City Atty., Joseph E. Berrigan, Jr., Asst. City Atty., for plaintiff-appellee.
   TATE, Justice.

The City of New Orleans recovered judgment against a building contractor (“Smith”) and its surety. The defendants’ chief defense was that the City’s claim had prescribed by reason of the three-year prescription against claims on public works construction contracts. The prescription is provided by La.R.S. 38:2189 (as enacted by Act 15 of 1962).

In overruling the defendant’s exception pleading this statutory prescription, the trial court held the cited act unconstitutional. Consequently, because a statute was declared unconstitutional, the defendants were entitled to the direct appeal to this court. See La.Const., Article 5, Section 5(D)(1) (1974).

We do not reach the issue of the constitutionality of the statute because, upon the showing made, the prescriptive statute relied upon does not apply to the type of construction agreement here at issue.

The City of New Orleans sues Smith and its surety upon a performance bond. The City alleges that Smith failed to install certain sidewalks which, by the bond, the contractor had agreed to complete. The bond, attached to the petition, shows that the obligation to construct the sidewalks arose because. Smith “is required by the city’s subdivision regulations to install ’concrete sidewalks.”

The case was tried upon stipulations. With respect to the nature of the agreement by which Smith was obligated to construct the sidewalks, the stipulation simply states that Smith “entered into a contract with the City of New Orleans to perform sidewalk and street paving” in a named subdivision. There was no stipulation with respect to the nature or terms of this contract, other than that the work was to be performed within two years.

During oral arguments before this court, it was suggested for the first time that there may have been no construction contract within the meaning of La.R.S. 38:2189. In a supplemental brief, the City of New Orleans now argues that there was in fact no contract for the sidewalk construction; that, instead, Smith was obligated to construct the sidewalks, not by contract, but by subdivision regulations of the New Orleans City Planning Commission.

In supplemental brief, the City points out that the subdivision regulation (referred to in the performance bond in the record) was adopted by the city planning commission as authorized by La.R.S. 33:101,102,112. The latter provision specifically authorizes a city planning commission to adopt regulations requiring grading and improving of streets and other ways as a prerequisite condition before approving a subdivision of land within the city.

Attached to the brief (but not in evidence) is the governmental regulation requiring a subdivider to post a performance bond to cover cost of the improvements to a subdivided tract, required under the subdivision regulation, as a prerequisite to commission approval of the subdivision plat. The improvements so required include certain street and sidewalk specifications.

The special prescriptive period provided by La.R.S. 38:2189 (1962), alone relied upon by the defendants, is not applicable if the obligation to construct the sidewalks arose from a requirement imposed by regulation pursuant to statute. As will be seen, the special prescription provided by La.R.S. 38:2189 (1962) applies only to obligations resulting from public construction contracts let to the lowest bidder under La.R.S. 38:2211-60.

The statutory prescription provision relied upon provides:

“Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration, or repair of any public works let by the state or any of its agencies, boards or sub-divisions shall prescribe three years from the registry of acceptance of such work or of notice of default of the contractor unless otherwise limited in this said chapter.” (Italics ours.)

As we explained in State ex rel. Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976), this prescription of La.R.S. 38:2189 applies, in its statutory context, only to construction contracts “let” for public works in accordance with the provisions in the chapter (Chapter 10. “Public Contracts”) in which this prescriptive provision is found. These contracts, for example, must be “let” to the lowest bidder, 38:2211, must be secured by statutory bond, 38:2213, 2241, and require registry of an acceptance, 38:2241.1, or permit registry of notice of default of the contractor, 38:2242. See reference to these statutory indicia in the prescriptive statute above quoted.

Under the performance bond here sued upon, Smith’s obligation to construct the sidewalks arose because, as the bond states, he was “required by the city’s subdivision regulations” to do so.

Smith’s agreement to install the sidewalks, as required by the subdivision regulation before this developer’s subdivision was approved, is of course a “contract” to do so. See La.Civil Code art. 1761: “A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.” It is not, however, a public works construction contract within the meaning of La.R.S. 38:2189 (1962), which provides the short three-year prescriptive period applicable to claims for default in the performance of only such contracts.

The sole defense to the suit was the prescriptive period relied upon, which we hold to be inapplicable under the present record. Nevertheless, rather than affirm, we believe it more appropriate to set aside the judgment and to remand:

The stipulation on which the case was tried is silent as to whether Smith’s contract to install the sidewalks was indeed a public works construction contract. While we may infer from the performance bond sued upon that Smith’s agreement was not such a contract, the record contains neither the “contract” stipulated nor the planning commission regulation (which the performance bond indicates to be the actual basis of Smith’s contractual obligation to install the sidewalks). The case was tried in district court upon the mistaken assumption of both parties that the prescriptive period provided by La.R.S. 38:2189 applied (if valid) to the contractual agreement in question.

Under the circumstances noted, we deem it to be appropriate to remand this case for further proof of the nature of the contractual obligation secured by the performance bond, as well as to permit the defendants to raise other defenses available, if any, to this suit upon the performance bond. See La.C. Civ.P. art. 2164; see also Official Revision Comment (c).

Accordingly, the judgment in favor of the City is set aside, and the case is remanded to the district court for further proceedings consistent with the views above expressed. All costs to be imposed upon final termination of these proceedings.

JUDGMENT SET ASIDE, AND CASE REMANDED.

      . The language quoted was in effect at the time the purported contract was signed on November 2, 1966. The provision has subsequently been amended to increase the prescriptive period from three to five years and to make other changes. See Act 250 of 1975.


author: CALOGERO, Justice.

text:
    SOUTHSIDE CIVIC ASSOCIATION, INC. v. GUARANTY SAVINGS ASSURANCE CO. et al.
    No. 58019.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Felix R. Weill, Watson, Blanche, Wilson & Posner, Baton Rouge, for plaintiff-applicant.
    Michael A. Patterson, Roy, Kiesel, Patterson, Hudson & Abadie, Baton Rouge, for John E. Prevost, Floyd J. Falcon, Jr., Dodd, Barker, Avant, Wall & Thomas, A Division of Dodd & Barker, A Law Corporation, Baton Rouge, for Guaranty Savings Assurance Co.
    Joseph F. Keogh, Parish Atty., Clinton Hyatt, Jr., Asst. Parish Atty., for defendants-respondents.
   CALOGERO, Justice.

This law suit concerns the zoning classification and use of a certain tract of land located in the City of Baton Rouge and the building located thereon. The tract consists of five lots (numbered five through seven of the W. B. Kennard property, fronting on Stanford Avenue) near a subdivision known as University Gardens. Plaintiff Southside Civic Association Inc. is a Louisiana nonprofit corporation composed of residential property owners, many of whom live in University Gardens. Plaintiff brought this action against Guaranty Savings Assurance Company, owner of the five lots and the building situated thereon; Guaranty’s lessee, John E. Prevost, who was operating an automobile dealership (Prevost Volvo) in a portion of the building; and Robert C. Groht, the Building Official of the City of Baton Rouge who purportedly is the official with the ministerial duty of" enforcing the provisions of the Baton Rouge Comprehensive Zoning Ordinance. The suit alleges that use of the property for an auto dealership violates the Baton Rouge zoning ordinance, and plaintiff requests a writ of mandamus, an injunction, and a declaratory judgment decreeing that the subject property is zoned A-4, multiple dwelling residential.

The parties agreed that the trial court should hear only the declaratory judgment issue, reserving their rights as to the other demands. After a hearing, the trial judge declared the property unzoned in favor of defendants. On appeal the circuit court affirmed. We granted plaintiff’s application for writ of certiorari in order to review the rulings of the courts below that the property is unzoned.

The property in question was zoned A-l in the initial Comprehensive Zoning Ordinance adopted by the City of Baton Rouge, Parish of East Baton Rouge in 1950. That ordinance, insofar as it affected the very property in question, was declared unconstitutional by this Court in the case of State ex rel. Loraine, Inc. v. Adjustment Board of City of Baton Rouge, 220 La. 708, 57 So.2d 409 (1952), and the property was declared to be unzoned. After the decision in Loraine and the construction of the building in question, the 1950 Comprehensive Zoning Ordinance was amended on August 10,1955 by Ordinance Number 435 which zoned the subject property C multiple dwelling.

In 1958 a completely new Comprehensive Zoning Ordinance for the City of Baton Rouge, Parish of East Baton Rouge (Ordinance Number 792) was enacted. In that 1958 ordinance the zoning of the subject property was established as A-4, general residential-multiple dwelling, a zoning classification under the new ordinance comparable to the former C multiple dwelling classification.

It was in September of 1974 that Prevost applied for and was eventually granted a certificate of occupancy which allowed him to occupy the premises 922 Stanford Avenue as a retail and wholesale auto dealership. Thereafter, Prevost began to operate Prevost Volvo on the property, and plaintiffs filed the instant lawsuit.

Defendants’ position in this litigation, a position which has heretofore prevailed in both courts below, is that, following declaration by this Court in the Loraine case that the property was unzoned, its unrestricted use has never been legally changed. They challenge the city’s effort in the 1955 ordinance to classify the property C multiple dwelling on the grounds that the notification in 1955 purportedly advised of a proposed change, not from the property’s true unzoned status, but from zoning classification A-1, to C. They claim that such notice deceptively suggested a broadening of property usage when in fact the change (from unzoned to C) constituted an imposition of restrictions on use. They contend that similar reasons strike with nullity notification incident to passage of the 1958 ordinance because, as they assert in brief, “the notice which the owner of the subject property would have received would be” that the proposed change was in effect simply a redesignation (C to A-4) of an essentially unchanged zoning classification. The Court of Appeal merely said in this regard that the 1958 ordinance purported to change the zoning of the property in question from C (multiple dwelling residential) to A-4 (also multiple dwelling residential), a letter classification change only. The Court of Appeal offered no further explanation of its action in upsetting the 1958 Comprehensive Zoning Ordinance of the City of Baton Rouge.

We granted writs in this case because of what we construed to be error in the Court of Appeal’s finding legally inapplicable to the subject property the Comprehensive Zoning Ordinance of 1958.

When we read the record in this case, the only evidence concerning notice which we discover with respect to either the 1955 or 1958 ordinance was the testimony of Robert C. Groht who answered “Yes” when questioned whether it was correct to assume that, as relates to Ordinance Number 435 of 1955, rezoning of the subject tract had “proceeded from the point of application to the point of enaction” as a rezoning from A-l to the newer designation. The record contains no indication as to just what actual public notices were given in connection with either proposed ordinance. Nor is there any suggestion that the actual public notices given could not have been introduced at the trial,

Zoning ordinances are presumed to be valid. Parties attacking their validity have the burden of proof. Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir. 1966); Sears, Roebuck & Company v. City of Alexandria, 155 So.2d 776 (La.App. 3rd Cir. 1963), writ denied, 245 La. 83, 157 So.2d 230 (1963).

Comprehensive Zoning Ordinance Number 792 was effective as to the Parish of East Baton Rouge on October 7,1958 and as to the City of Baton Rouge on October 20, 1958. It is presumed that it is, and was, legally effective. It purports to repeal “all ordinances in conflict herewith.” It purports to divide the City of Baton Rouge (Parish of East Baton Rouge) into five districts and within said districts, among other things, to regulate the use of buildings and land. It further subdivides the five districts into specific sub-districts among which is an A-4, general residential district. The ordinance incorporates by reference an official map, on which the subject property is designated A-4.

The ordinance was enacted under the authority of La.R.S. 33:4721, et seq. being the incorporation into the Revised Statutes of 1950 of Act 240 of 1926. La.R.S. 33:4724 provides that the legislative body of a municipality desiring to adopt municipal zoning regulations must first conduct a public hearing at which parties in interest have an opportunity to be heard, after publication of notice of the time and place of the hearing in the Official Journal of the municipality.

There was no showing at the trial of this case that the 1958 ordinance was not enacted after appropriate notice and hearing as required by state law. In fact, in briefs in connection with this case, as we earlier indicated, there is only the surmise by defendants as to the type of notice that was had in connection with the proposed ordinance. Nor did the Court of Appeal find that the appropriate and legal notice and hearing was not followed incident to passage of the ordinance. Defendants contend that the 1958 ordinance purported to change the zoning of the property in question from C multiple dwelling residential to A-4. The record does not reflect that such notice was given by the council, i. e., from C to A^4. And the Comprehensive Zoning Ordinance itself does not reflect the prior zoning of the subject property.

If the owner of the property had established that he had been notified (incorrectly) of a proposed change from C to A-A rather than from unzoned to A-4, his position would be a bit stronger. On the other hand, even in that event his contention would not necessarily be meritorious. Notification of the zoning classification to which the property is to be changed would appear to comport with due process as it affects an owner who perhaps should be presumed to know the actual zoning classification of his property.

Defense counsel in oral argument stated that anything less than actual notice to this landowner would constitute a violation of due process of law. Although we need not reach the issue of the type of notice necessary in this case because of the absence from the record of the type of notice given, we note that the predominant rule is quite the contrary:

“Statutes requiring notice preparatory to the enactment or amendment of zoning measures typically provide for constructive rather than actual notice, as by publication in a local newspaper a specified number of times. These statutes and the ordinances passed pursuant to them are sometimes attacked as invalid in that, without actual notice, the owner has been deprived of his property without due process of law. The courts have held rather uniformly that this contention is groundless and that the statute need not provide for, nor the ordinance be passed upon, actual notice.” 36 A.L.R.2d 459 and eases cited therein.

In any event Ordinance Number 792 of 1958, the Comprehensive Zoning Ordinance for the City of Baton Rouge, Parish of East Baton Rouge, presumed to be valid, has not been shown to be invalid by defendants, who have attacked it. They have specifically failed to show that it was not enacted in conformity with state and/or local law after appropriate notice and hearing at which parties in interest had an opportunity to be heard. R.S. 33:4724.

We therefore hold that lots three through seven of the Kennard Tract (subject property) are validly zoned A-4 under the 1958 Baton Rouge Comprehensive Zoning Ordinance, subject to any non-conforming use which may be applicable.

Inasmuch as the lower courts did not reach the question of non-conforming use and did not make any factual finding on this issue, having considered it unnecessary in view of their holdings that the 1958 ordinance was invalid as relates to the subject property, we will remand this case to the district court for a determination of this yet-unresolved issue.

Accordingly the judgment of the Court of Appeal affirming the district court judgment, and holding the controverted property to be unzoned is reversed and set aside. The case is remanded to the district court for further consideration in light of the foregoing.

      . The contest in the trial court also included an unnumbered lot immediately northeast of lots three through seven. That lot was found to be properly zoned A-l single family, and its zoning is no longer at issue in the litigation.

      . Defendants assert that the subject property has had various uses over the years. In the early ’50’s the building was constructed pursuant to a permit issued prior to the first attempt at zoning the property. It was occupied by Capital Stores as a grocery store and later by National Food Store. In 1966, the building was renovated and split into two parts; the southwest part of the building was numbered 844 Stanford Avenue, the northeast part, 992 Stanford Avenue. Since 1966, a wall has separated thé two parts of the building, and separate entrances afforded each. The Building Official keeps a separate file on 844 and 992 Stanford Avenue, and separate certificates of occupancy have been required for each part of the building. Mr. Groht testified that the two parts of the building are treated separately.
      The part of the building designated 844 Stanford Avenue has been used as a grocery store since the renovation of the building in 1966, and use of that portion of the building is not the subject of this litigation. The other part of the building 992 Stanford Avenue, which is the subject of this lawsuit, has, defendant asserts, been used over recent years variously as a bar and lounge and more recently for the retail and wholesale auto dealership operated by defendant Prevost.

      .Although Prevost’s application for the certificate was initially denied, it was later granted on the strength of an opinion issued by the City-Parish Attorney.


text:
    STATE of Louisiana v. William A. SHORT and John A. Short.
    No. 58124.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      Jack Peebles, New Orleans, for defendants-respondents.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-relator.
   CALOGERO, Justice.

Defendants in this case are each charged by the State of Louisiana with two violations of the Jefferson Parish obscenity ordinance, Number 11491,1/3/74 (Code of Ordinances, Jefferson Parish, La., Sections 12-61 through 12-70). The prosecutions are in the First Parish Court for the Parish of Jefferson. Defendants filed motions to suppress certain magazines seized by Jefferson Parish deputies on the respective occasions defendants are alleged to have violated the obscenity ordinance.

The motions to suppress were granted by the Parish Court judge, whereupon the state filed in this Court an application for writs of certiorari, prohibition and mandamus, which was granted. We now conclude the writ was improvidently granted, contrary to our policy that we will not grant writs under our supervisory jurisdiction when recourse in the lower courts of this state has not been exhausted.

As we have indicated, the state was purportedly aggrieved by a ruling or judgment of the First Parish Court granting a motion to suppress evidence. They should first have sought relief in the Twenty Fourth Judicial District Court for the Parish of Jefferson. R.S. 13:1896(B) provides in pertinent part that “review of a judgment in any other criminal case [i. e., other than prosecution under a state statute] tried in a city, parish or municipal court shall be by appeal to the district court of the parish in which the court of original jurisdiction is located, except in those cases which are appealable to the Supreme Court under the provisions of the Constitution.” Thus, the Twenty Fourth Judicial District Court is vested with appellate jurisdiction, as authorized by Article V, § 16(B) of the 1974 Louisiana Constitution. And the state in this case is either entitled to a review of the First Parish Court ruling or judgment by appeal to the district court as authorized by R.S. 13:1896(B), or by application to the district court for supervisory writs incident to the district court’s appellate jurisdiction.

Inasmuch as the state has not sought relief of any character in the Twenty Fourth Judicial District Court, we desist from considering the merit of its application and revoke the writ earlier issued as having been improvidently granted, reserving to the state the opportunity to seek relief in the appropriate appellate forum.

The writs of certiorari, prohibition and mandamus heretofore granted are recalled.

      . Art. V, § 16(B) of the La.Const. of 1974 provides that “A district court shall have appellate jurisdiction as provided by law.”

      . Art. V, § 2 of the La.Const. of 1974 provides that:
      “A judge may issue writs of habeas corpus and all needful writs, orders and process in aid of the jurisdiction of his court. . . ”

      .It should be noted that in an almost identical prosecution with the same legal issue and a similar ruling by the trial judge, State v. Weedon, La., 330 So.2d 308, # 244077 First Parish Court, Parish of Jefferson, the state sought and secured relief from the Twenty Fourth Judicial District Court (Appeal # 179 on the docket of the Twenty Fourth Judicial District Court). This Court denied that defendant’s writ application because of the availability to the defendant of an appeal in the event of conviction. State of Louisiana v. Weedon, 330 So.2d 308 (La.1976).

      . See Dardare v. Barnes, 326 So.2d 335 (La. 1976) wherein the application was denied with the following notation: “Writ denied. Proper remedy by appeal to district court. R.S. 13:1896, as amended. Likewise any application for writs in aid of its jurisdiction should be directed to the district court. La.Const. Art. V, § 2 (1974).”


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

text:
    STATE of Louisiana v. Alfred HAYNES.
    No. 58129
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      Vincent Wilkins, Jr., Appellate Counsel, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The East Baton Rouge Parish Grand Jury indicted Alfred Haynes with the murder of Lee Stewart in violation of LSA-R.S. 14:30. After trial, the jury returned a responsive verdict of guilty of manslaughter. On appeal, we reversed defendant’s conviction, set aside his sentence and remanded his case for a new trial. State v. Haynes, La., 291 So.2d 771 (1974).

The defendant was then tried for manslaughter. LSA-R.S. 14:31. After the jury found him guilty of manslaughter, the court sentenced him to serve ten years at hard labor. He appeals his conviction and sentence, relying upon eleven assignments of error.

On the evening of September 22, 1971, following an argument with his wife, Alfred Haynes went to his sister-in-law’s home to ask his wife, Vivian, to return home with him. Defendant became involved in a fight with his wife, his sister-in-law, and a niece.' When the niece called for help, Lee Stewart came out of the house where he was living with defendant’s sister-in-law and stabbed defendant in the shoulder with a kitchen knife. Although Stewart went back toward the house, defendant pulled a gun from his belt and shot Stewart in the head, killing him.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1 defendant argues that the trial court erred in denying his motion to enjoin the empanelling of the jury venire. He contends that blacks were excluded from the petit jury venire in violation of his constitutional right to due process.

To support a challenge that blacks were systematically excluded from the jury venire, the defendant must show that the State has not complied with the statutory procedures for composition of a petit jury venire or has systematically excluded blacks from the system. State v. Brown, La., 319 So.2d 409 (1975).

The record discloses that eight of the twenty-seven prospective jurors questioned for jury service were black. The petit jury was selected by a random method in the same manner and from the comprehensive listing of the parish registered voters which was compiled by “color-blind” random procedures. In the instant case there has been no systematic exclusion in the selection of the jury venire shown. State v. Robinson, La., 302 So.2d 270 (1974).

The transcript of the voir dire examination indicates that the eight blacks were peremptorily challenged by the State. It was stipulated in the record that all twelve jurors empanelled were white. Although defendant’s assignment of error complained specifically of the petit jury venire, the State’s exercise of its peremptory challenges on black prospective jurors, nevertheless, will be treated.

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the United States Supreme Court held that the fact that the prosecutor uses his peremptory challenges to strike every qualified member of the defendant’s race from the jury panel does not constitute a denial of due process or equal protection, where there is no sufficient showing of a historical pattern of exclusion.

We have frequently held that the motive for the exercise of a peremptory challenge ordinarily is not subject to judicial review, State v. Carter, La., 301 So.2d 612 (1974), at least in the absence of evidence of systematic exclusion of black jurors from the justice system over a period of time. State v. Curry, La., 319 So.2d 917 (1975); State v. Gray, La., 285 So.2d 199 (1973).

The defendant has not shown a historical pattern of exclusion of blacks. We, therefore, find defendant’s assignment of error without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2 defendant argues that the trial judge erred in denying his motion to have the jury sequestered.

Although the defendant was originally tried for murder, the trial here is one for manslaughter. Louisiana Code of Criminal Procedure Article 791 requires mandatory jury sequestration only in capital eases. In all other cases it is within the discretion of the trial judge to sequester the jury prior to its charge.

The manslaughter verdict at the first trial had the effect of acquitting Haynes of murder, the capital offense with which he was charged. LSA-C.Cr.P. Art. 598. The subject of the present trial was a non-capital offense. That charge governs sequestration procedures and makes sequestration discretionary.

As there are no special circumstances warranting sequestration, the trial court did not abuse its discretion in denying defendant’s motion for sequestration. State v. Wells, 168 La. 925, 123 So. 621 (1929); State v. Robichaux, 165 La. 497, 115 So. 728 (1928).

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3, 4, 5, AND 6

In brief, defendant consolidated these assignments of error as they all relate to the prosecutor’s alleged improper questioning of witnesses. Defendant specifically complains that the questions were leading, prejudicial and called for the opinions of witnesses.

During the State’s examination of Vivian Haynes, defendant’s wife, the following colloquy took place:

“Q. To what?
“A. I was holding on to her.
“Q. To your sister?
“A. Uh-huh.
“Q. You were holding on to your sister? Why were you doing that? Were you dizzy, faint, or what? Why were you holding on to your sister?
“A. Because I didn’t want to go.
“Q. I know, but — was he pulling on you? “A. Yeah.
“Q. Is that why you were holding on to your sister?”

In objecting to this line of questioning, defendant argues that the State was coaching its witness and that the leading questions are inadmissible when propounded to one’s own witness.

LSA-R.S. 15:277 provides:

“A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile.”

In State v. Fallon, La., 290 So.2d 273 (1974) we stated:

“Notwithstanding the general rule against leading questions, the matter is largely within the discretion of the trial court, which may allow such questions to be put to a witness when it deems such course necessary or advisable, or refuse to allow such questions where the circumstances do not seem to require such mode of examination; and in the absence of palpable abuse of discretion resulting in prejudice to the accused, reversible error cannot be predicated upon a ruling of the trial court allowing leading questions. State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925). And to warrant consideration on review, an objection to a leading question should point out contemporaneously the harm and prejudice the accused will suffer by permitting the question. State v. Smith, 193 La. 665, 192 So. 92 (1939); State v. Antoine, 189 La. 619, 180 So. 465 (1938); McCormick’s Handbook of the Law of Evidence § 6 (2d ed. 1972).”

The defendant did not claim prejudice at the time of his objection nor does he make a showing of prejudice in this Court. His assignment of error is, therefore, without merit.

In Assignment of Error No. 4, defendant complains that the State sought to elicit opinion testimony of Mrs. Haynes in asking:

“Q. How would you — uh—could you describe what was going on between the three of you? How would you characterize that?”

The witness’s answer, “We were struggling” clearly demonstrates that the question did not elicit opinion testimony. The witness properly testified as to facts within her knowledge.

This assignment of error is also without merit.

In Assignments of Error Nos. 5 and 6 defendant complains of leading and prejudicial questions propounded to witness Zadie Lindo. Although he objected to the entire line of questioning, the following questions are the specific bases of Assignments of Error Nos. 5 and 6, respectively:

“Q. Who was right behind Lee?
* * * * * *
“Q. —and he’s about reached the front door. And you have another man at arm’s length behind him. That man must be traveling himself too, huh?
* * * * * *
“A. Well, was he?”

The first question was not a leading question. The second question merely restated testimony which the witness had given immediately before the question was asked. Although it may be considered a leading question, no prejudice resulted.

The witness possessed personal knowledge of the facts which the questions elicited. Thus, the trial court properly overruled defendant’s objections.

Assignments of Error Nos. 5 and 6 are without merit.

ASSIGNMENT OF ERROR NO. 7

In Assignment of Error No. 7 defendant alleges that the court erred in overruling the following leading question propounded to Patricia Noble:

“Q. Well, now, that’s not where she was living was it?”

Although this is the question cited in defendant’s brief as objectionable, it appears that he objected to the entire line of questioning of which this question was a part.

“MR. BELL: Well, Judge, I’m going to object — uh—you’re leading the witness.
“MR. ROY: I said, is that where she was living?
“MR. BELL: I’m asking for a ruling, Judge.
“THE COURT: Well, I’ll overrule the objection.
“MR. BELL: Assign error.
“A. Ask it again?
“BY MR. ROY:
“Q. Is that where Vivian — you aunt, Vivian — was living at that time?
“A. No, she was living on Monroe Avenue.
“Q. Madison, like?
“A. Oh, yeah; Madison.
“Q. I mean, I don’t want to put words in your mouth—
“MR. BELL: Well, that’s exactly what he’s doing, Judge.”

While a review of the transcript does indicate that the State did resort to leading questions in several instances, there does not appear to have been any substantial prejudice to defendant or any abuse of discretion by the trial judge in controlling the examination. See State v. Peters, La., 302 So.2d 888 (1974); State v. Washington, La., 294 So.2d 794 (1974); State v. Vassel, La., 285 So.2d 221 (1973).

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

In this assignment of error defendant complains that the trial court erred in allowing the introduction of his oral statement to Detective James Johnson over his objection. At trial, defendant objected to the introduction arguing that it was not an intelligent waiver in view of the special circumstances. In brief defendant argues these additional grounds for the inadmissibility of the statement: (1) absence of written waiver form; (2) not witnessed by anyone other than the testifying officer; (3) given while under the influence of possible medication to combat pain; and (4) not offered in its entirety.

Prior to the introduction of the statement, the State laid a predicate outside of the jury’s presence. Detective Johnson testified that he talked to defendant at the emergency room the night of the incident in question; he advised defendant of his rights; he did not threaten or otherwise intimidate defendant; and although defendant had been stabbed in the shoulder, he appeared to be rational and to understand what he was doing. The officer asked and received permission to speak to the defendant from the doctor, although he did not specifically ask if the defendant was taking medication. The defendant offers no evidence that he was in fact taking medication or unable to knowingly or intelligently waive his rights.

Initially, we note that there is no requirement that the waiver of an accused’s Miranda rights be in writing. State v. Stevenson, La., 323 So.2d 762 (1975); State v. Lewis, La., 315 So.2d 626 (1975). Prior to the admission of a confession or inculpatory statement, the State must affirmatively establish that the requirements of Miranda v. Arizona have been met. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Evans, La., 317 So.2d 168 (1975); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969).

Defendant’s waiver of his Miranda rights, though oral, may be proved by competent evidence. State v. Stevenson, supra; State v. Lewis, supra. The testimony adduced at trial establishes that the defendant waived his rights knowingly and voluntarily.

Defendant’s assertion that his statement was not offered in its entirety in compliance with LSA-R.S. 15:450 is also without merit. The defendant simply makes the allegation. He makes no showing to support this allegation. From a reading of the evidence adduced at trial, it appears that the statement was offered in its entirety.

Assignment of Error No. 8 is without merit.

ASSIGNMENTS OF ERROR NOS. 9 AND 11

Defendant groups these two assignments of error, alleging that they both relate to LSA-C.Cr.P. Art. 770(1) which provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;”

He argues in Assignment of Error No. 9 that the trial court erred in denying his motion for a mistrial based on the following: (1) the district attorney remarked that he had no objection if defense counsel solicited hearsay testimony during the cross examination of a witness, (2) the State’s request for two instanter subpoenas in the jury’s presence.

These two actions of which defendant complains are not included within the grounds for mandatory mistrial in Article 770.

However, assuming without deciding that the State’s remarks were irrelevant or immaterial and prejudiced defendant, LSA-C.Cr.P. Art. 771 provides that the court shall admonish the jury to disregard the comment or remark. The article further provides that if the court is satisfied that an admonition is insufficient to assure the defendant a fair trial, upon defendant’s motion, the court may grant, a mistrial.

In the instant case the trial court did admonish the jury as follows:

“I’ll instruct the jury that whatever the prosecutor says, or the Defense counsel says when they get up and make arguments or objections or motions is not evidence — whatever they think they’re going to do or not do prove or not prove and what they state they think they’re going to do by that is not evidence. You’re not to consider such statements in your deliberations.”

In Assignment of Error No. 11, defendant contends the trial court erred in failing to admonish the jury following his objection to the State’s alleged misleading statements of law made during its closing argument. The defendant objected, stating:

“I want to make an objection. Your Honor — what the prosecutor is doing now is misleading the jury on the — on the — on Louisiana law on the amount of force you need to — uh—quell a disturbance of this kind. Now, he knows full well that it was no weapon of violence and no licks being passed, and yet he’s implying to the jury that Lee Edward Stewart had a right to use that knife on the defendant at this time. And I think that’s misleading the jury, and I — I’d like for that — admonish the Court to correct this erroneous impression of the law.”

Following the defendant’s objection, the court stated:

“Well, the Court can’t comment on the evidence and the — as was pointed out previously — the arguments of the counsel for the State or for the Defense is not evidence and the inferences they may attempt to draw from the evidence is their own. If it appears to be reasonable and logical, you can accept it. If it doesn’t and in accord with the facts as you see them, you can reject them — or you can accept them — just depending on how they appear to you. And, Mr. Bell will have the opportunity to point out any apparent discrepancies that he feels or inconsistencies or inaccuracies that Mr. Roy may be guilty of, if he is.”

Contrary to the defendant’s allegation, the trial court did admonish the jury as requested. The denial of a motion for a mistrial is within the sound discretion of the trial court. In the absence of an abuse of discretion in denying a motion for a mistrial after an admonition has been given, that ruling will not be disturbed.

In light of the trial court’s admonition following each of defendant’s objections, if any prejudice resulted from the State’s comments or actions, it was corrected. Assignments of Error Nos. 9 and 11 are without merit.

ASSIGNMENT OF ERROR NO. 10

In Assignment of Error No. 10 defendant complained that the trial court erred in denying his motion for a directed verdict. In brief, however, defendant does not treat the denial of this motion. It will, therefore, not be considered. See State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

In his brief defendant argues only the denial of his motion for a mistrial. This motion was based upon the State’s offering and then withdrawing the offer to introduce the tape recording of defendant’s confession.

It is noted that defense counsel initially objected to the introduction, of the tape. Further, there was no testimony as to the contents of the tape. In conclusion, we find that no prejudice resulted from the offer and the withdrawal of the offer of evidence.

Assignment of Error No. 10 is without merit.

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

TATE, J., assigns additional concurring reasons.

DENNIS, J., concurs with reasons.

TATE, Justice

(concurring).

By Assignment One, the defendant complains of the refusal of the trial court to enjoin the state’s use of peremptory challenges to exclude any prospective black jur- or, simply on the ground of his race, in the trial of this black defendant. The apparent thrust of the motion to enjoin is a contention that the assistant district attorney in question has consistently and systematically excluded black jurors from the trial of black defendants.

In support of its contention, the defendant simply introduced the census reports showing the proportion of blacks in the population. I agree with the majority that this does not sufficiently prove systematic exclusion of blacks by use of peremptory challenges, or even raise a prima facie case as to this issue..

However, if indeed it were proved that this assistant district attorney has consistently exercised peremptory challenges so as to exclude any black juror from participating in the trial of any black defendant, I would find merit to an assignment of error based upon the ground urged. See: State v. Gray, 285 So.2d 199 (La.1973); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Barham, The Peremptory Challenge: A Prosecutorial Stratagem to Circumvent Due Process, 1 Southern Univ.L.Rev. 16 (1974). I note this, in view of the colloquy at the trial (which indicates a prosecutorial misunderstanding of the constitutional principles applicable), in order to avert, if possible, the occasion of reversible error in the future.

DENNIS, Justice

(concurring).

I concur in the majority’s treatment of Assignment of Error No. 1 because defendant has not demonstrated a systematic exclusion of blacks from jury panels by the State’s use of peremptory challenges in this case.

Nevertheless, I note with some concern the frequent recurrence of the identical complaint in cases appealed from East Baton Rouge Parish. Since 1972 there have been eight cases from that district, including the present appeal, in which defendants alleged that the State exercised its peremptory challenges to exclude black verniremen from the petit jury. 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) (six blacks peremptorily challenged by the State but one black venireman accepted); State v. Smith, 263 La. 75, 267 So.2d 200 (1972).

Because these cases, represent only a small number of those tried in East Baton Rouge Parish, I cannot say that this record alone indicates an historical system of discriminatory exclusion. However, these cases may trace the outlines of a pattern of exclusion, and if it can be demonstrated in a future case that the practice complained of has not been restricted to isolated instances, then the State should be required to establish that the exclusion of blacks is rooted in some other cause than racial discrimination. For, to exercise peremptory challenges solely on the basis of race without regard to legitimate trial-related objectives is to pervert the purpose of and abuse the broad discretion inherent in that procedure. See, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

I respectfully concur.

      . These two questions form part of the following line of questioning which the defendant also found objectionable:
      “Q. Now, why were you running?
      “A. When people in a fight or something, they just trying to protect everything; that’s all.
      “Q. I know, but you did’t run when all that scuffling and shoving and stool-swinging was going on, did you?
      “A. What’s that?
      “Q. You weren’t running then, were you?
      “A. Running how? What was two things— what was the stool-swing — the gun?
      “Q. Well, you — you say—

        “A. I would have been right up there myself, I reckin, if my littles sister hadn’t of pulled me down, because I’m usually do that over things—
      “Q. Well, I mean, maybe — Lee may have been sitting up there, huh?
      “A. Yeah; Just about — I wished he was—
      “Q. Huh?
      “A. — ’cause I’m tired — I sure am tired up here.
      “Q. Who was right behind Lee?
      “A. Alfred."


author: MARCUS, Justice.

text:
    Stephen J. GENNUSO, d/b/a Professional Bonding Service v. STATE of Louisiana.
    No. 58137.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      Gerald C. de Launay, Logan & de Lau-nay, Lafayette, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Charles W. Richard, Asst. Dist. Atty., for defendant-appellee.
   MARCUS, Justice.

On April 26,1971, Stephen J. Gen-nuso, d/b/a Professional Bonding Service, filed this suit to have a judgment dated April 21, 1969 decreeing the forfeiture of appearance bonds issued by plaintiff as surety declared null for lack of written notice of the time, date and place the accused was required to appear as mandated by La.Code Crim.P. art. 337 and for failure to comply with the procedure for forfeiting bail bonds set out in La.R.S. 15:85. The state waived its declinatory exception to the petition for nullity previously filed and filed an answer in the form of a general denial. After trial on the merits, the district judge rendered judgment in favor of defendant, dismissing plaintiff’s suit. Plaintiff took an appeal to the court of appeal. On motion of defendant, the court of appeal initially dismissed plaintiff’s appeal for lack of jurisdiction. On rehearing, the court of appeal ordered the matter transferred to this court under the provisions of La.Code Civ.P. art. 2162.

Initially, it should be noted that this matter was previously before this court. On January 11, 1971, some twenty-one months after the judgment of bond forfeiture (April 21, 1969), plaintiff filed a motion for a new trial which was denied by the trial court as untimely. Plaintiff appealed to this court, alleging that the trial judge erred in refusing to grant a new trial. The motion for new trial was grounded on the claim that the record was completely devoid of any evidence of service upon the surety. Plaintiff further contended that the motion for new trial was timely since no notice was given of the judgment of forfeiture of April 21, 1969 as required by La.Code Civ.P. art. 1913. We affirmed the ruling of the trial judge both on the merits and on the finding that the motion for new trial was untimely. State v. Hudson, 261 La. 555, 260 So.2d 621 (1972). The present action to have the judgment dated April 21, 1969 decreeing the forfeiture of bail bonds declared null was filed (April 26,1971) pending an appeal from said judgment.

In the present appeal, plaintiff first argues that at the time the instant bonds were executed, the trial date had been previously set by the trial court and that no notice of said trial date was ever transmitted to plaintiff. Therefore, when the accused failed to appear on the trial date and the bonds were ordered forfeited, it was done without proper notice to plaintiff as required by La.Code Crim.P. art. 337. Plaintiff further contends that there was a failure to comply with the provisions of La.R.S. 15:85 reciting that a judgment decreeing the forfeiture of the bond shall not be rendered except “upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety.” Plaintiff argues that the minutes of court for April 21, 1969 reflect that, after defendant was called and did not appear, “on motion of District Attorney, Frank T. Salter, Jr., the Court ordered his bond forfeited and a bench warrant issued for his arrest.” Therefore, since no evidence was submitted by the district attorney of service or attempted service upon defendant and service upon the surety, there was a failure to comply with the provisions of La.R.S. 15:85.

Plaintiff argues that the judgment of April 21, 1969 ordering the forfeiture of the bonds should be annulled because of the above alleged vices either under La.Code Civ.P. art. 2002(2) or art. 2004.

If we were to consider plaintiff’s demand for nullity as being grounded on alleged vices of form as set forth in La.Code Civ.P. art. 2002(2), we must first consider the effect of the last paragraph of that article which provides:

Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.

Article 2003 provides:

A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.

The judgment of April 21, 1969 was paid in full by plaintiff on October 31, 1969. Plaintiff admitted that he made no attempt to enjoin the enforcement of the judgment. Plaintiff argues that he did not voluntarily acquiesce in the judgment. Rather, payment was made to prevent his privilege of executing bonds in that court from being jeopardized. There is no merit to this contention. The evidence adduced at trial clearly supports the conclusion that payment was made and no action taken to enjoin the enforcement of the judgment not because of the jeopardy to plaintiffs bail bond business but rather because property had been posted as security, which plaintiff considered sufficient indemnification in the event of forfeiture. Subsequent bankruptcy proceedings thwarted this indemnification. Under the facts and circumstances of this case, the district judge correctly held that plaintiff was not entitled to urge the ground for nullity set out in article 2002. La.Code Civ.P. art. 2003.

On the other hand, if we were to consider plaintiffs demand for nullity as grounded on alleged vices of substance, i. e., fraud or ill practices, the action of nullity must have been filed within one year of the discovery by the plaintiff of the fraud or ill practices. La.Code Civ.P. art. 2004.

The burden of proving that an action of nullity is brought within one year of the discovery of the fraud or ill practice is upon the plaintiff. Emuy v. Farr, 125 La. 825, 51 So. 1003 (1910); Citizens’ Bank v. Jeansonne, 120 La. 393, 45 So. 367 (1907); Succession of Dauphin, 112 La. 103, 36 So. 287 (1904); Thomas v. Beasley, 295 So.2d 213 (La.App.3d Cir. 1974); St. Mary v. St. Mary, 175 So.2d 893 (La.App.3d Cir. 1965). In the instant case, plaintiff neither alleged in his petition nor offered any proof at trial to show the time when he discovered the fraud or ill practice alleged as ground for the nullity sought. In any event, it is obvious that plaintiff must have known that the judgment of bond forfeiture had been rendered against him without proper notice when he paid the judgment in full on October 31, 1969. He did not bring this action of nullity until April 26, 1971, some eighteen months later. Hence, plaintiffs action of nullity was correctly not considered under La.Code Civ.P. art. 2004.

In sum, plaintiff’s demand for nullity of the judgment of April 21, 1969 decreeing the forfeiture of appearance bonds issued by plaintiff as surety was correctly denied by the district court. La.Code Civ.P. arts. 2002, 2003 and 2004.

DECREE

For the reasons assigned, the judgment of the district court is affirmed.

      . 332 So.2d 492.

      . 332 So.2d 493.

      . While an action to forfeit a bail bond is a civil proceeding and subject to the rules of civil procedure, it is treated as a criminal proceeding for the sole purpose of appellate jurisdiction. State v. Sandoz, 258 La. 297, 246 So.2d 21 (1971); State v. Kunzler, 248 La. 133, 177 So.2d 112 (1965); State v. United Bonding Ins. Co. of Indianapolis, Ind., 244 La. 716, 154 So.2d 374 (1963). Therefore, it logically follows that an action to declare null a judgment decreeing the forfeiture of a bail bond, while a civil proceeding subject to the rules of civil procedure, is criminal for the purpose of determining appellate jurisdiction. Hence, the matter was correctly transferred to this court by the court of appeal.

      . La.Code Civ.P. art. 2005 provides in pertinent part:
      A judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.

      . La.Code Crim.P. art. 337 provides:
      When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail in a felony case, his surety shall be given written notice of the time, date, and place the principal is required to appear. The notice shall be delivered to the surety by an officer designated by the court, at least two days prior to the day set for the appearance, or may be mailed to the surety at least three days prior to the day set for the appearance. If the principal appears as ordered and the proceeding is continued to a specific date, the surety need not be given notice of the new appearance date. Failure to give notice, as required by this article, relieves the surety from liability on a judgment of forfeiture for the defendant’s nonappearance on that particular date.

      .The pertinent part of La.R.S. 15:85 states:
      A. All bonds taken to secure the appearance of any person before any district court, otherwise than at a preliminary examination, shall be forfeited and collected as follows:
      (1) If, at the time fixed for appearance, such person fails to appear and answer when called, the judge shall, on motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety, forthwith enter a judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof.

      . La.Code Civ.P. art. 2002(2) provides:
      A final judgment shall be annulled if it is rendered:
      (2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; .

      . This case differs factually from Ray v. South Central Bell Telephone Company, 315 So.2d 759 (La.1975) wherein this court held that under the peculiar facts of that case payments made on an invalid judgment in order to prevent the seizure of personal property under a writ of execution issued did not constitute voluntary acquiescence barring suit to annul judgment filed within eleven weeks after payments began.

      .La.Code Civ.P. art. 2004 provides:
      A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.


author: DENNIS, Justice.

text:
    Dorothy Ardoin CAMPBELL et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.
    No. 58154.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      A. Gaynor Soileau, Fusilier, Pucheu & Soileau, Ville Platte, for plaintiffs-appellants.
    Paul J. Breaux, Allen, Gooch & Bourgeois, Ltd., Lafayette, for defendant-appel-lee.
   DENNIS, Justice.

Plaintiff, Dorothy Ardoin Campbell, widow of Roosevelt Campbell, in her own capacity and in behalf of her minor child, Iris Ann Campbell, sued defendant, Fidelity & Casualty Company of New York, Evangeline Timber Company’s workmen’s compensation insurer, seeking inter alia reimbursement for $7,535.38 in medical expenses (in addition to the $12,500 already paid by the defendant) which had been incurred during treatment of her husband during the interval between his work-related injury on May 5,1973, and his death on July 8,1973. Both the trial court and the Third Circuit Court of Appeal rejected plaintiff’s demands, finding that no “undue and unusual hardship” resulted from defendant’s denial of additional medical benefits. We granted certiorari to review the decisions of the lower courts and, for the reasons hereinafter set forth, we reverse.

No factual dispute is presented by the instant case. The relevant facts, as stipulated by the parties, are as follows: the plaintiff was married to Roosevelt Campbell. On May 5, 1973, while in the employ of Evangeline Timber Company, a small corporation owned solely by him, Roosevelt Campbell sustained bodily injuries in a work-related accident which resulted in his death on July 8, 1973. Medical expenses totalling $20,035.38 were incurred as a result of Campbell’s injuries. The defendant paid $12,500 of these expenses, leaving $7,535.38 to be paid by Campbell’s widow. At the time of his demise, Roosevelt Campbell owned no separate property; his entire estate was one-half the community property, the total value of which, at the time of his death, amounted to $67,263.98.

At the time of the present litigation, La.R.S. 23:1203 provided:

“The employer shall in every case coming under this Chapter, furnish all necessary medical, surgical, hospital services and medicines or any nonmedical treatment recognized by the laws of this state as legal, not to exceed the total sum of twelve thousand five hundred dollars, ($12,500.00), except in cases of undue and unusual hardship as hereinafter provided, unless the employee refuses to allow them to be furnished by the employer.
U* * *
“Upon a showing by the injured employee in a court of competent jurisdiction by a preponderance of the evidence that as a result of the injury he necessarily requires medical, surgical or hospital services or medicine to a sum in excess of twelve thousand five hundred dollars ($12,500.00) and that unless same are furnished by the employer he will be subjected to undue and unusual hardship, the court in its discretion may order the employer to furnish same, not to exceed the additional sum of twelve thousand five hundred dollars ($12,500.00).”

The legal issue presented is whether plaintiff demonstrated by a preponderance of the evidence that as a result of the fatal injury of her husband he necessarily required medical services to a sum in excess of $12,500 and that unless same were furnished he would have been subjected to undue and unusual hardship.

The trial judge was of the opinion that ,,* * * p'jhg ‘undue and unusual hardship’ provision of Revised Statute 23:1203 is not applicable in this case for the reason that the Court is of the opinion that such a condition does not exist in the case at bar and therefore the exces-
sive medical payment provided for in the said statute should be disallowed; *

The court of appeal found no error in the trial court’s ruling on this question; in its view

“* * * whether plaintiff [was] entitled to receive additional medical benefits under * * * [La.R.S. 23:1203] depended] on whether she * * * proved by a preponderance of the evidence that unless the additional amount in excess of $12,500.00 [was] furnished by the defendant she [would] be subjected] to undue and unusual hardship.”

In reviewing the correctness of the lower courts’ rulings, we are guided by the familiar principle that the Louisiana Workmen’s Compensation Statute is liberally to be construed to protect the employee from loss due to employment related to injury, and to place on the employer, who can more readily bear it, the risk of that loss. Hall v. Pipe Line Service Corp., 233 La. 821, 98 So.2d 202 (1957); Geist v. Martin Decker Corp., 313 So.2d 1 (La.App. 1st Cir. 1975); Pierce v. Kaiser Aluminum and Chemical Corp., 311 So.2d 509 (La.App. 4th Cir. 1975).

We are unable to determine whether the trial court, in finding that the instant case presented no “undue and unusual hardship” requiring an award of additional medical benefits, sought to determine whether the deceased workman’s widow and heirs were subjected to unusual hardship after his death or if the workman himself would have been subjected to undue hardship in furnishing them for himself. A fair reading of the court of appeal decision suggests that it, incorrectly in our view, applied the former test.

The relevant inquiry, under La. R.S. 23:1203, is whether, as medical expenses exceeding $12,500.00 accrue, their payment by the injured employee, rather than by his employer, would amount to an undue and unusual hardship. If so, then excess medical benefits may be awarded. Furthermore, a deceased employee’s right to recover pre-death unreimbursed medical expenses is heritable and transmissible to his heirs. Turner v. Southern Wheel and Rim Service, Inc., 332 So.2d 770 (La.1976).

The court of appeal simply looked to the assets theoretically available for the payment of the $7,535.38 in medical expenses after the death of the employee, and made its determination based on the value of the community at the time of the employee’s demise. Included in the $67,263.98 figure representing the value of the community were substantial sums representing the value of the family home, household furnishings and fixtures, automobiles, immovable property and the like. We cannot conclude that the legislature, while providing that in cases of hardship the employer could be compelled to pay medical expenses exceeding $12,500.00, intended that the courts, in determining whether the employee was confronted with undue hardship in paying excess medical expenses, simply determine whether the value of his assets exceeded liabilities. Instead, we conclude the assessment of a hardship is more than a matter of mathematics and involves a consideration of the employee’s total circumstances at the time the need for the medical expenses arises.

The court of appeal found that payment of medical expenses amounting to more than ten per cent of the total value of the community existing between the deceased and the plaintiff was not so burdensome as to amount to an undue and unusual hardship. We find this conclusion and the similar conclusion reached by the trial judge erroneous because they were not based upon a full consideration of the factors that may have contributed to the employee’s hardship. Furthermore, applying the test which we herein expressed, i. e., that the question of hardship is to be resolved as of the time the medical expenses accrue, and not at some later time, the court of appeal erred in simply weighing the hardship of paying $7,535.38 in medical expenses against the total value of the community.

At the time the medical expenses herein sought to be recovered were incurred, Roosevelt Campbell was seriously injured and out of work. He had no separate property, and the record reveals no other significant source of income, with the possible exception of workmen’s compensation benefits, to aid him in meeting day-today living expenses. His essentially one-man business, Evangeline Timber Company, had likely ceased to produce income, and if it produced any, to the extent it was not used to satisfy day-to-day living expenses, it would have been reflected in the inventory of the deceased’s community. Nevertheless, he continued, for as long as he lived, to be the head of a family with two dependents.

We find by a preponderance of the evidence that under the total circumstances existing when the additional medical services became necessary that Mr. Campbell was subjected to an undue and unusual hardship and was therefore entitled to reimbursement for the costs incurred over $12,500.

Accordingly, the judgment of the court of appeal insofar as it dismissed plaintiff’s claim to excess medical benefits under La. R.S. 23:1203 is reversed. It is ordered, adjudged and decreed that there be judgment in favor of Dorothy Ardoin Campbell individually and in behalf of her minor child, Iris Ann Campbell, against Fidelity & Casualty Company of New York in the amount of $7,535.38 and for all costs of this appeal.

REVERSED AND RENDERED.

      . By La. Acts 1975, No. 583, § 6 this section of the Workmen’s Compensation Statute was amended to remove any limit on the amount of medical expenses for which the employer may be liable. La.R.S. 23:1203 was further amended by La. Acts 1976, No. 400, § 1 and provides as follows:

        “Medical expenses, duty to furnish; prosthetic devices

      “The employer shall in every case coming under this Chapter, furnish all necessary medical, surgical, hospital services and medicines or any nonmedical treatment recognized by the laws of this state as legal.
      “The employer shall likewise furnish to the employee the necessary cost of repair to, or the replacement of, any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment including, but not limited to, damage or destruction of eye glasses, artificial limbs, hearing aids, dentures, or any such prosthetic device whatsoever.
      “In addition the employer shall be liable for mileage reasonably and necessarily traveled by the employee in order to obtain the services, medicines and/or devices which the employer is required to furnish under this Section. The extent of the employer’s liability shall be determined in accordance with the standard mileage rates used by the United States Internal Revenue Service in computing the mileage deduction allowed for medical care under Section 213 of the Internal Revenue Code.”

      . We have found only one reported case awarding medical benefits in excess of the conditional maximum set by La.R.S. 23:1203. See, Panebiango v. Main Insurance Co., 293 So.2d 536 (La.App. 4th Cir. 1974). In that case there was no discussion of the meaning of the phrase “undue and unusual hardship.” The court of appeal simply affirmed the trial judge’s ruling as being within his sound discretion. Neither can we avail ourselves of decisions reached under similar facts in the courts of our sister states. Louisiana’s imposition of a fixed limit for medical benefits subject to extension for a limited additional amount appears unique. 2 Larson, Workmen’s Compensation Law, § 61.-11 at 10-435.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Walter OTIS.
    No. 58161.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      Ray A. Barlow, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On February 10, 1976 at approximately 8:00 a. m. the defendant, Walter Otis, and another person known as James “St. Pete” Williams parked their car near the Shamrock Grocery in the Cooper Road area of Shreveport. The two men left the car, began walking down Russell Road and passed Mr. John Gardner who was sitting on his front porch. Gardner testified that Williams was putting on a pair of black gloves as he passed. Otis and Williams proceeded to a house several lots away from Mr. Gardner’s on the other side of the street, went into the yard and up to the front door of the residence of Ms. Emmaline Mosby. Ms. Mosby testified that she had taught Otis a number of years before. They knocked on the door, waited several minutes and then Williams went around the side of the house and jumped over a fence to the rear of the house. Defendant Otis remained at the front door for between twenty and forty minutes. Mr. Gardner, who observed Otis and Williams continually, became suspicious, went into his house and returned with his shotgun. At this point a woman walked by Ms. Mosby’s house and the defendant left the front door and walked two lots down where he saw Bobby Bell, an acquaintance. Immediately thereafter, Mr. Gardner, armed with his shotgun, saw Williams placing two stereo speakers over the fence behind Ms. Mosby’s yard. Williams then went to the back of the house and returned with a white television set in his hand. Gardner pointed his gun at Williams and told him to put the television down, at which point Williams fled, with Gardner firing a shot over his head. Otis; still two houses down at Bobby Bell’s grandmother’s house, began to run when he heard the shot but was held at gunpoint by Mr. Gardner until the police arrived. The police discovered a window broken at the back of the house, various items piled up in the house and the residence in disorder. The State charged the defendant, Walter Otis, as a principal in the burglary, contending that Williams was burglarizing the house while Otis acted as a lookout in the front of the house. Otis, tried before a judge alone, was found guilty as charged and sentenced to five years at hard labor.

Assignment of Error No. 1

In his first assignment of error the defendant contends that the trial judge erred in failing to enter a judgment of acquittal after the close of the State’s evidence and after the close of all the evidence because all of the State’s evidence was circumstantial, and the evidence presented failed to exclude every reasonable hypothesis of innocence. The rule in circumstantial evidence cases is in R.S. 15:438:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

Defendant contends that the evidence adduced failed to exclude one reasonable hypothesis of innocence, offered by the defendant in his testimony, to wit: that the defendant’s car had run out of gas, he had stopped at the victim’s house to try to use the phone to get assistance, that he did not commit the burglary and that he was not at Ms. Mosby’s house at the time of the burglary. The defendant further alleges that the trial judge applied the wrong standard of proof to the case and he cites the trial judge’s comments as evidence of this fact. In rendering his verdict the trial judge said:

“There is not the slightest doubt in my mind whatever that the State has more than carried its burden beyond a reasonable doubt; that this defendant was a principal engaged in the act with James St. Pete Williams in attempting to burglarize Mrs. Mosby’s house. The State has proven that.”

The mere use of the words “has more than carried its burden beyond a reasonable doubt” does not, of itself, indicate the precise standard used. See State in Interest of Simmons, 299 So.2d 906 (La.App. 3d Cir. 1974). The trial judge clearly indicated that the State did satisfy a higher standard than “beyond a reasonable doubt.”

A review of the facts reveals the following: the store at which the defendant stopped his car was open and had a telephone which he could have used; Williams and Otis walked approximately two-tenths of a mile past numerous houses before they stopped at Ms. Mosby’s house allegedly to use the phone. The defendant stayed at Ms. Mosby’s front door for at least twenty minutes, which is far more than would have been necessary to determine if she was home, and stayed at the front door while Williams went to the back of the house. Items were removed from Ms. Mosby’s house. Otis did not leave the front door until a passerby walked by the house. When Mr. Gardner fired at the fleeing Williams, the defendant also tried to escape and had to be held at gunpoint by Mr. Gardner until the police arrived. Therefore, the common sense inference of the trial judge that the defendant was a “principal” in the burglary was reasonably based on the defendant’s actions both prior to and subsequent to the burglary. The evidence presented did tend to exclude all innocent explanations of the defendant’s actions. Assuming every fact to be proved that the evidence tended to prove, the evidence excluded every reasonable hypothesis of innocence. Therefore, the standard of R.S. 15:438 has been met. State v. Williams, 310 So.2d 513 (La.1975).

Assignment of Error No. 2

In this second assignment the defendant alleges error in the trial court’s failure to enter a judgment of acquittal after the close of the State’s evidence and after the close of all of the evidence because the State’s evidence was insufficient to sustain a conviction. At the close of the State’s case the defendant moved for a judgment of acquittal pursuant to C.Cr.P. 778. The motion was denied by the trial judge and the defense proceeded.

Article 5, § 5(C) of the Louisiana Constitution of 1974 provides:

“Except as otherwise provided by this constitution, the jurisdiction of the supreme court in civil matters extends to both law and fact. In criminal matters, its appellate jurisdiction extends only to questions of law.”

Therefore, insufficiency of evidence may not be reviewed by this court. State v. O’Neal, 328 So.2d 100 (La.1976); State v. Williams, 327 So.2d 399 (La.1976). However, a trial judge should grant a motion for acquittal after the State’s case when there is no evidence at all of the crime charged or of an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973). Whether there is no evidence at all does present a question of law reviewable by this court. State v. Williams, 310 So.2d 513 (La.1975); State v. Pryor, 306 So.2d 675 (La.1975); State v. Douglas, supra.

The State introduced the following evidence. Otis and Williams were proceeding down Russell Road with Williams putting on a pair of black gloves. Otis and Williams went to Ms. Mosby’s house and knocked at the door. Williams then proceeded to the back of the house while Otis stayed at the front door for approximately twenty minutes. A burglary was committed and Mr. Gardner saw Williams place stereo equipment over the fence behind the house; Williams was carrying a television when Gardner ordered him to stop. Gardner shot over the head of Williams, who fled. When the shot was fired Otis attempted to flee and had to be kept at gunpoint until the police arrived. On the basis of these facts we cannot say that the State presented no evidence at all from which the trial judge could reasonably conclude that the defendant was guilty of the offense of simple burglary. State v. O’Neal, supra. See R.S. 14:62 (simple burglary); R.S. 14:24 (principals). Therefore, there was no error in the trial judge’s denial of the motion for acquittal.

Assignment of Error No. 3

The defendant objected to the trial judge’s admitting evidence of the burglary committed by Williams on the ground that such evidence was irrelevant to the guilt or innocence of the defendant Otis. R.S. 15:435 and 441 define relevant evidence as follows:

“The evidence must be relevant to the material issue.” (R.S. 15:435).
“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. “Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.” (R.S. 15:441).

Here, the defendant was charged as a principal in the crime of simple burglary. R.S. 14:24 defines principal as follows:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

Since the State must prove every element of the crime of simple burglary as to defendant Otis, the testimony as to Williams’ burglarizing the house is clearly relevant to the guilt or innocence of the defendant. This assignment has no merit.

Assignment of Error No. 4

Finally, the defendant assigns as error the trial judge’s ruling permitting the introduction into evidence of pictures of the back of Ms. Mosby’s house showing the point of entry and of the articles which were removed from the house. Defendant objected to their introduction on the grounds of relevance and that no proper foundation had been laid for the pictures to be admitted. For the same reasons outlined in Assignment of Error No. 3 above these pictures clearly were relevant evidence. As to proper foundation, Mr. Gardner testified that the pictures accurately depicted the television where he had ordered Williams to put it down. He also stated that he was familiar with the back of Ms. Mosby’s house. In addition, after the introduction of the photos, Officer Thompson, the arresting officer, testified that he was present at the time that the pictures were taken and that the pictures accurately reflected what he saw when he arrived at the scene. Generally, photographs are admissible when they are shown to be accurate representations of the subject in question and shed light on the matter before the court. State v. Vince, 305 So.2d 916 (La. 1974). There was no error in permitting the introduction of these photographs.

Accordingly, since there was no reversible error by the trial court, the conviction and sentence of the defendant are affirmed.

MARCUS, J., concurs.


author: PER CURIAM.

text:
    STATE of Louisiana v. Ronald RANDOLPH.
    No. 58190.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Tilden H. Greenbaum, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lawrence RILEY.
    No. 58221.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed,


text:
    STATE of Louisiana v. Joseph EDWARDS.
    No. 58229.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Vincent Wilkins, Jr., Director and App. Counsel, Public Defender, 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.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles A. TURNER and Al E. Romano.
    No. 58239.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Lawrence L. Lagarde, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Linda F. SIMEON and Sheila James.
    No. 58259.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Larry LANDRY.
    No. 58272.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. William F. SAM and Albert Fournette, Sr.
    No. 58278.
    Supreme Court of Louisiana.
    Nov. 18, 1976.

      J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Howard DEMESMA.
    No. 58289.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles REDDICK.
    No. 58290.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Raymond BATISTE.
    No. 58291.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. William POWELL.
    No. 58292.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Martha JOHNSON and Josie Loveless.
    No. 58331.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Daryl Gold, Leesville, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Johnny CLOPHUS.
    No. 58347.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Jack J. Rogers, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Archie HAWKINS.
    No. 58355.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Milton P. Masinter, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. A. H. SMITH and Mrs. A. H. Smith.
    No. 58361.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    Don H. Johnson, Johnson & Johnson, Monroe, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Rickey MITCHELL and Kevin Peterson.
    No. 58231.
    Supreme Court of Louisiana.
    Nov. 23, 1976.
    Thomas J. Baumler, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.