text:
    Ellie Velma Broadfoot RHETT, Executrix of Estate of J. C. Broadfoot v. Hallie Kelly Evans BROADFOOT.
    No. 48865.
    Supreme Court of Mississippi.
    July 27, 1976.
    Rehearing Denied Sept. 21, 1976.
    Burgin, Gholson, Hicks & Nichols, John W. Crowell, Columbus, for appellant.
    Threadgill & Smith, Gary L. Geeslin, Columbus, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Chancery Court, Lowndes County; W. W. Brand, Jr., Chancellor.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    A. T. CLEVELAND and the Great Atlantic & Pacific Tea Company v. The CITY OF FOREST, Mississippi, a Municipal Corporation.
    No. 49241.
    Supreme Court of Mississippi.
    May 25, 1976.
    Rehearing Denied Aug. 31, 1976.
    Watkins & Eager, Jackson, for appellants.
    O. B. Triplett, Jr., Forest, for appellee.
    Before GILLESPIE, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Affirmed.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, BROOM and LEE, JJ.

Rehearing denied; GILLESPIE, C. J., ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

PATTERSON, INZER, P. JJ., and SMITH, J., dissent.

LEE, J., took no part in this decision.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Lawrence “Red” BABIN, Appellant.
    No. 57584.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.
    Bertrand DeBlanc, Lafayette, for defendant-appellant.
    William J. Guste, Jr,, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Ronald E. Dauterive, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

On remand after reversal of a previous conviction, 319 So.2d 367 (La.1975), the defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty-five years at hard labor. On his present appeal, he relies upon two principal arguments (advanced through four assignments of error).

(1)

The first argument (Assignments of error nos. 1 and 2) was taken as to the admission, over defendant’s objection, of the testimony of two physicians that the defendant was sane at the date of their examinations (in the statutory sense that he knew the difference between right and wrong with regard to the offense charged. La.R.S. 14:64).

The testimony was offered in connection with the defendant’s plea of not guilty by reason of insanity. La.C.Cr.P. art. 552. The accused contends that the testimony was inadmissible and of no probative force insofar as it contained medical opinions based on examinations made several months after the date of the offense. He contends that only evidence as to his sanity or not on the actual date of the offense is probative and admissible.

The objection goes to the weight rather than to the admissibility of the evidence. The fact that the accused was sane (in the statutory sense) several months after the offense, does not prove he was sane on the date of its commission; but it is relevant evidence which the jury may consider in determining such fact-issue. As we stated in State v. Sauls, 226 La. 694, 77 So.2d 8, 12 (1954), “evidence of present sanity was a factor which could be considered by the jury in determining the validity of appellant’s defense of insanity at the time of the commission of the offense.”

(2)

The second argument (Assignment no. 3) relates to the denial of a motion for a mistrial when a deputy mentioned that he brought “a tray of mug shots” to the victim, in an effort to secure his identification of any suspected burglar.

The defendant argues that from this comment the jury might infer that the accused had a previous criminal record. Thus, it is contended, the question elicited an inadmissible comment in the nature of an indirect reference to other crimes alleged to have been committed by the defendant, thus mandatorily requiring a mistrial. La.C.Cr.P. art. 770(2).

In the absence of deliberate intent by the state to secure prejudicial reference of this nature, the unresponsive reply of a state witness referring to mug shots does not require mandatory mistrial under Article 770. State v. Smith, 285 So.2d 240 (La.1973). The trial court, however, has discretion to grant a mistrial if it is satisfied that an admonition is not sufficient to cure the prejudice so caused. La. C.Cr.P. art. 771.

Here, the trial court offered to admonish the jury to disregard the inadvertent reference of the deputy to the mug shots. The defendant did not wish to emphasize the remark and accordingly refused the admonition.

Prosecutors should, of course, attempt to avoid responses of the nature here involved, if necessary cautioning their witnesses in advance. Nevertheless, we are unable to find that the reference to mug shots was so unmistakably a reference to other crimes alleged to have been committed by the accused as to require a mistrial, State v. Price, 325 So.2d 780 (La.1976), instead of being curable by a cautionary instruction (as offered). We thus find no abuse of discretion in the trial court’s denial of a mistrial.

We are unable to find any merit to an additional assignment (no. 3) based on this same contention.

The contention stems from the following testimony: The victim, when asked, “Have you seen him [the accused] on any occasion prior to that?”, replied, “Well, I saw him — I saw a photograph of him.”

The victim’s reference to seeing a “photograph” of the accused at a time and place unspecified does not in terms refer to photographs taken in connection with criminal charges. The state made no attempt by the question or in context to connect this unsolicited testimony with the prior unsolicited improper reference by another witness to the mug shots. We cannot find error in the denial of a mistrial, for we do not believe that, even in conjunction with the earlier reference to mug shots by another witness, the reply by the witness in context referred to other criminal charges.

Decree

For the reasons assigned, therefore, we affirm the conviction and sentence.

AFFIRMED.


author: CALOGERO, Justice.

text:
    J. B. OWEN et al. v. W. H. OWEN et al.
    No. 57467.
    Supreme Court of Louisiana.
    June 21, 1976.

      Joseph A. Reeves, Jr., Emmons, Henry & Reeves, Jonesboro, for plaintiffs-respondents.
    D. G. Brunson, Baker, Culpepper & Brunson, Jonesboro, for defendants-applicants.
   CALOGERO, Justice.

This is a lawsuit by six of the seven children of I. M. and Henrietta Owen, including one J. B. Owen, against their brother (the seventh child W. H. Owen) and his vendees (Wayne S. Bush and Charles Wayne Bush) to have two transfers from their father, I. M. Owen, one to W. H. Owen and the other to W. H. Owen and J. B. Owen jointly, declared simulations, or, alternatively, nullified because they were donations in disguise and donations omnium bonorum, or, alternatively, to have such property collated in a partition.

On March 22, 1957, I. M. Owen executed three separate deeds of sale covering tracts composed respectively of 40 acres, 40 acres, and 15 acres. He conveyed 40 acres to his son W. H. Owen for a stated consideration of $100, 40 acres to a second son J. B. Owen for a stated consideration of $720, and 15 acres to both W. H. Owen and J. B. Owen for a stated consideration of $300. The property descriptions are more fully given in the Court of Appeal opinion, Owen v. Owen, 325 So.2d 283 (La.App. 2nd Cir. 1975), and are incorporated herein by reference. The properties are here referred to respectively as tracts one, two, and three. Ownership of tracts one and three are those at issue in this lawsuit.

In October 12, 1957, I. M. Owen died intestate, and on February 1, 1970 his widow, Henrietta Owen, died intestate. In 1972, following the deaths of Mr. and Mrs. Owen and, of course, subsequent to the execution of the three deeds mentioned above, one of the plaintiffs, J. B. Owen, conveyed all of his interest in tract three to his brother W. H. Owen for $1500. Thereafter, on January 29, 1973, W. H. Owen conveyed the acreage made up of tracts one and three in the following manner: twenty-seven and one-half acres comprising the western half thereof to defendant, Wayne S. Bush for $7,837.50, and twenty-seven and one-half acres comprising the eastern half thereof to defendant Charles Wayne Bush, Wayne S. Bush’s son, for $7,837.50. Some nine months thereafter this suit was instituted by six of the Owen children against the seventh child, W. H. Owen, and his vendees Wayne and Charles Bush. Plaintiffs asked that the court set aside the transfers from I. M. Owen to his sons, and order the property returned to the decedent’s estate or declare that each of the forced heirs own an undivided one-seventh interest in the property. Alternatively, plaintiffs asked that the property be collated under the provisions of Article 1227 et seq. of the Civil Code.

After trial on the merits the Second Judicial District Court rendered judgment in favor of plaintiffs declaring that the two deeds attacked were null and void. In his reasons for judgment the trial judge described the transfers as “simulations and donations in disguise.” The trial court judgment further declared that each of the seven children owned an undivided one-seventh interest in the designated tracts at issue in this suit.

From this judgment defendants W. H. Owen, Wayne Bush, and Charles Bush appealed to the Second Circuit Court of Appeal alleging error in the trial court’s judgment. The Second Circuit Court of Appeal affirmed the trial court’s decision, holding that the conveyances from I. M. Owen of the controverted tracts one and three were donations in disguise, donations omnium bonorum and consequently absolutely null. Owen v. Owen, supra.

We granted writs upon defendants’ application. 326 So.2d 376 (La.1976). In this Court, defendants allege that the Court of Appeal erred in finding that the conveyances by I. M. Owen were donations in disguise and donations omnnim bonorum, that they erred in concluding that a donation omnium bonomm is an absolute nullity, and that they erred in decreeing that the seven heirs of Mr. and Mrs. I. M. Owen were owners each of an undivided one-seventh interest in the subject property.

The following facts are borne out by the record and are not seriously contested. In March 1957, at the time I. M. Owen purported to sell the land in question to his sons, he sold tract number three, comprising 15 acres, for $300, although the property was worth $45 per acre, or $675. On that same date he purported to sell tract one, comprising 40 acres, for a stated consideration of $100, although it was worth $45 per acre, or $1800.

In 1970 the fifty-five acres owned by W. H. Owen were valued at $10,725. He sold the land to the Bushes in 1973 for approximately $16,000. In 1975, that same property was worth $18,700. Although neither of the courts below reached this issue, it is clear that the Bushes purchased the disputed property for a fair price.

The acts of sale by which I. M. Owen conveyed the three tracts in 1957 identified the vendor as I. M. Owen and the vendees as W. H. Owen and J. B. Owen. The deeds, in authentic form, recite that the properties were sold to the respective ven-dees for the stated consideration “cash in hand paid, the receipt of which is hereby acknowledged.” The deeds do not indicate that I. M. Owen was the father of W. H. and J. B., nor that these three properties constituted all of the property owned by Mr., or by Mr. and Mrs., Owen.

The only contested issue of fact in the case is whether the sons actually paid their father for the property. J. B. judicially confessed that he paid nothing for the property. W. H. claimed that he did pay for the property which was transferred to him, but could produce no evidence to support his assertion. The trial court found that nothing was paid by either brother for the land, a finding the Court of Appeal upheld. There is no error in this finding, and we agree with the courts below that the March 22, 1957 sales of tracts one and three to W. H. Owen and to J. B. Owen and W. H. Owen, respectively, were not sales but were disguised donations under Article 2444 of the Civil Code.

It was established at the trial that before the Bushes purchased the property in question from W. H. Owen they were told by J. B. Owen that there was some question as to whether W. H. Owen could transfer a “clear deed,” but they were given no reason for J. B.’s assertion. Wayne Bush also learned from W. H. Owen that he had bought the property from his father. However, there is no evidence that the Bushes ever had any knowledge of Mr. and Mrs. I. M. Owen’s financial condition (at any time) nor any knowledge of the value of the property in March of 1957, some fifteen years before their purchase of the property.

The plaintiffs established at trial that at the time of the transfers in question Mr. and Mrs. Owen were living on social security and welfare payments, and that they owned no immovable property other than the three tracts transferred; but there was no evidence as to the amount of income they were receiving-, nor was there any evidence -as to what their living expenses were. It was established that I. M. Owen had $600 when he died in late 1957, a sum W. H. Owen kept in an account “for his mother.”

The plaintiffs contend, and the courts below found, that when I. M. Owen sold these two tracts he had divested himself of all of his property without reserving to himself enough for subsistence. Article 1497 prohibits such a donation in the following language:

“The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

In order to sustain an attack on a gift as a donation omnium bonorum, the heirs must prove conclusively that the donation divested the donor of all of his property. Whitman v. Whitman, 206 La. 1, 18 So.2d 633 (1944); Potts v. Potts, 142 La. 906, 77 So. 786 (1918); Hearsey v. Craig, 126 La. 824, 53 So. 17 (1910); Hinton v. May, 241 So.2d 583 (La.App. 2nd Cir. 1970). In light of the stringent requirements set forth in the aforementioned cases, we are not as certain as were the lower courts that the requirements of Article 1497 were met so as to brand I. M. Owen’s disguised donations as donations omnium bonorum. We nonetheless accept the finding of the lower courts, for, even assuming the donations were omnium bonorum, the decision of the Court of Appeal in our view must be reversed for the reasons we relate thereinafter.

The plaintiffs allege first that the transfers from parent to sons were simulations. In our law, a simulation is a transfer of property which is not what it seems. Simulations are of two types: pure simulations, and disguised transfers. In a pure simulation, sometimes called a non-transfer, the parties only pretend to transfer the property from one to the other, but in fact both transferor and transferee intend that the transferor retain ownership of the property. When this type of simulation is successfully attacked, the true intent of the parties is revealed, which was that no transfer had in fact taken place. In a contest between a vendor and vendee in this situation the true intent of the parties is effectuated and the courts hold that no transfer took place because the simulated sale is an absolute nullity. Successions of Webre, 247 La. 461, 172 So.2d 285 (1965); Schalaida v. Gonzales, 174 La. 907, 142 So. 123 (1932); Milano v. Milano, 243 So.2d 876 (La.App. 1st Cir. 1971). The other type of simulation is a disguised transfer which seems on its face to be a valid sale, but which is intended by the parties to be a gift rather than a sale. When this sort of simulation is attacked successfully, as it has been here under Article 2444, the true intent of the parties is likewise effectuated by the law. A valid transfer has taken place, but its form is a donation rather than a sale and the Code articles on donations apply to the transfer. Stevens v. Stevens, 227 La. 761, 80 So.2d 399 (1955); Carter v. Bolden, 13 La.App. 48, 127 So. 111 (La.App. 2nd Cir. 1930); 35 La.L.Rev. 192 (1974) ; 25 La.L.Rev. 313 (1965).

However, when the property is no longer held by the original vendee but has passed into the hands of an innocent third party who has purchased for value and in reliance on the public records, the result is much different. In the case of Chachere v. Superior Oil Co., 192 La. 193, 187 So. 321 (1939), this Court upheld the rights of third party purchasers to retain the land in question even though the transfer to their vendor had been a disguised donation. The Court 'held that because the transfer from the original vendor (the parent of the plaintiff-forced heirs) to the original vendee (who in turn sold to the defendant-third party purchasers) was on its face a valid sale, the plaintiffs were not allowed, after the property had passed into the hands of third parties, to introduce evidence that the transfer was not a sale. The Court stated that:

“It is the well settled jurisprudence of this state that third persons dealing with immovable property have a right to depend upon the faith of the recorded title thereof and are not bound by any secret equities that may exist between their own vendor and prior owners of the land.” 187 So. 321.

In the case of Thompson v. Thompson, 211 La. 468, 30 So.2d 321 (1947), this Court reaffirmed Chachere and held that, when a third person acquires title to land prior to the assertion by forced heirs of their rights to have the disguised donation annulled, the third party who had purchased for value on the strength of the public records will defeat the claim of the forced heir. The Court stated that:

“[Wjhereas our system of law has protected the forced heirs against acts designed to deprive him of his legitimate portion, the rights granted to such forced heir cannot be extended so as to defeat the subsequently acquired rights of third persons who have bought property on the faith of the public records and under the belief that their vendor acquired a valid title by purchase. In fine, considerations of public policy, respecting a stability of titles, makes it necessary that innocent third parties prevail over the forced heir even though it results in the denial of the heir’s right which our law has so carefully guarded.” 30 So.2d at 329.

Likewise, when immovable property which has been the subject of a “pure” simulated sale is later sold to third persons who rely on the public records, in a case where the records show that the transfer was a proper sale, and where the records reveal no counterletter, the rights of the third party cannot be affected by subsequent proof that the original transfer was a pure simulation. Beard v. Nunn, 172 La. 155, 133 So. 429 (1931); Jackson v. Creswell, 147 La. 914, 86 So. 329 (1920); Vital v. Andrus, 121 La. 221, 46 So. 217 (1908); Gordon v. Culbertson, 296 So.2d 401 (La.App. 2nd Cir. 1974); Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tul.L. Rev. 491 (1965); 35 La.L.Rev. 192 (1974); 17 Tul.L.Rev. 457 (1943). It is clear then from the jurisprudence that in the situation where the original transfer was a pure simulation (and not therefore effective to pass title) and in the situation where the original transfer was a disguised donation (and did therefore effectively pass title to the transferee) that the rights of a third party are protected if he purchased on the basis of a public record evidencing an apparently valid sale. Since the third party purchasers here, the Bushes, did purchase for value and in reliance on public records which evidenced a valid sale, they are protected against the claims of the plaintiff forced heirs notwithstanding the fact that the transfer was actually a donation in disguise.

However, plaintiffs urge alternatively that the transfer was a disguised donation which purported to give away all that the donor (I. M. Owen) had, without retaining enough for his subsistence, in contravention of Article 1497, and therefore “null for the whole.” Plaintiff argues that if the vendee received only a null title, one that was ineffective to transfer title, he could not validly pass title on to the Bushes.

We find, however, that even if the title which passed to the sons could be declared absolutely null while the property remained in their hands, when the property passed into the hands of an innocent third party purchasing- in reliance on the public records, the claimants could no longer recover the property. In the case of Rocques v. Freeman, 125 La. 60, 51 So. 68 (1909), a widow transferred to her children through a partition her undivided interest in her community property. The children subsequently sold the property to third parties. The mother later attempted to nullify her transfer as a donation in disguise and as a donation omnium bonorum, but this Court affirmed the dismissal of her petition. The Court found that her transfer was null because it was a donation in disguise and a donation omnium bonorum, but held that the nullity could be asserted only against the done'es, not against innocent third parties who had dealt with the property on the faith of the public records.

The Court stated:

“The act which is sought to be annulled in this case as a donation does not appear on its face to possess that character. On its face, it is a partition between Charles F. Metoyer and his sister [plaintiffs’ children]. It was no more calculated to put innocent third parties on their guard against defects in the title than would have been a donation in the form of a sham sale. And zve do not imagine any one would say that a donation in the form of a sham sale could be annulled to the detriment of innocent third persons who had dealt with the property in the faith of the public records.” 51 So. at 70. (emphasis added)

We hold, therefore, that where there is nothing of record to indicate that the transfer to the original vendee could have been annulled as a donation omnium bonor-um and when an innocent party has purchased the land for valuable consideration relying upon the public records, the third party takes the property free of these unrecorded and secret equities.

Plaintiffs, however, claim that the Bushes were not innocent third party purchasers because they had certain actual knowledge about the original transfers, namely, that the transfers were from father to: children and that one of the brothers felt there was some doubt as to whether they (the Bushes) could get a “clear deed.”

It is uncontroverted that the Bushes were arms length purchasers who were buying the property for value, and that they were not participants or co-participants in any attempt at fraud. The legal issue here is whether the actual knowledge which they had of the previous transfer placed them in such a position that they could not rely on the public records. We hold that it did not.

A third party purchaser can rely on the public records so long as he does not participate in fraud. Jackson v. Creswell, 147 La. 914, 86 So. 329 (1920); Kinchen v. Kinchen, 244 So.2d 316 (La.App. 1st Cir. 1970), writ not considered, 257 La. 854, 244 So.2d 608; Dugas v. Talley, 109 So.2d 300 (La.App. 1st Cir. 1959). Even if he has some actual nonrecord knowledge of a preceding transfer which might have made him suspicious of a deed’s validity, he may still rely on the public records if they reveal an apparently valid sale. In the case of Prather v. Porter, 176 La. 324, 145 So. 675 (1933), this Court upheld the dismissal of a suit by the forced heir of the original vendor on defendants’ exception of no cause of action (defendants were third party purchasers) where the plaintiff contended that defendants were chargeable with knowledge that the transfer was a donation, because the defendants knew the following things: the original vendees were stated in the recorded instrument to be the daughter-in-law and grandson of the vendor; the consideration was stated to be “whatever amount”; and the transfer actually divested the transferor of all of his property. The Court held that these allegations were insufficient to charge the defendants with bad faith because, as it stated:

“the conveyance records are the only things to which one dealing with real estate or real rights needs to look. Notice or knowledge dehors the public records on the pEyrt of a third person is not equivalent to registry.” 145 So. at 677.

As to plaintiffs’ contentions as to the family relationship and the price, the Court stated:

“There is no law prohibiting the owner of real property from selling the property to his daughter-in-law and grandson. The price as finally expressed in an act of sale represents the stated consideration for the sale. And a vendee who has paid an adequate price cannot be dispossessed of his property because a prior vendor has chosen to part with his title for an inadequate consideration.” Id.

The actual knowledge which the Bushes had of the transfer to their vendor was far less than the Court in Prather assumed that the defendants had there. Of record, defendants Bush knew only that the vendor and vendee had a common surname, and that fifteen acres had been sold ostensibly for $300 and forty acres ostensibly for $100. Although the price of the forty-acre tract might have seemed unusually low (had the Bushes known the land values some fifteen years before), the stated consideration of the smaller tract was later established as a full 44% of its true fair market value, and, as this Court stated in Prather, “a vendee who has paid an adequate price cannot be dispossessed of his property 'because a prior vendor has chosen to part with his title for an inadequate consideration.” Beyond the record, the Bushes were aware that the original vendor-ven-dees were father and sons, and that one of the sons felt they could not get a clear deed. However, no suggestion has been made that the Bushes had any reason to believe that the sons had not paid for the property or that the sales in March of 1957 comprised all that the father had for his subsistence. It can therefore hardly be said that the Bushes were put on notice, either by the record or in fact, that the sales in question were donations, much less donations om-nmm honorum.

Therefore we conclude that a third party, who is not participating in fraud, and who plans to purchase for value property which according to the public records was properly sold to his prospective vendor, may rely on those records even though he has some actual knowledge on which he could speculate that a timely prosecuted legal attack upon his vendor’s title might be successful.

Plaintiffs’ final alternative argument is that the advantage bestowed upon W. H. Owen by his father when W. H. was donated the property in dispute is subject to collation. C.C. art. 1248. Collation, however, is not properly demandable in this suit which is primarily an action to set aside a sale by a parent to one of his children on the ground that it is a donation in disguise and a donation omnium honorum. Collation is made only to the succession of the donor, C.C. art. 1242, and it is clear that a demand for collation must be brought incident to a succession proceeding, and not made part of a suit to nullify a sale. Taylor v. Brown, 223 La. 641, 66 So.2d 578 (1953); LaMotte v. Martin, 52 La.Ann. 864, 27 So. 291 (1899); Jackson v. Jackson, 175 So.2d 360 (La.App. 2nd Cir. 1965) and cases cited therein. If the succession proceedings have been opened for I. M. Owen’s estate, it is in those proceedings which this claim must be brought. If the succession has not been opened, then the claim for collation is premature. Jackson v. Jackson, supra.

Anticipating that this Court might find merit in defendant’s arguments, plaintiffs have filed with us a motion for remand and for a new trial, so that they may have the opportunity to supplement the record in this case. They allege that on the same day the Court of Appeal denied defendant’s application for rehearing the Bushes reconveyed the property in dispute to their vendor, W. H. Owen. Plaintiffs contend that these conveyances moot the public record defense now before the Court and, in effect, remove the Bushes from the litigation.

We do not agree with plaintiffs’ conclusion and find it unnecessary to remand the case. Assuming that the plaintiffs would establish on remand that the appended deeds are authentic (and we have no reason to believe they could not), and that the Bushes have sold the property to W. H. Owen following denial of rehearing application in the Court of Appeal, we do not feel that such a sale affects the litigation in its present posture.

Plaintiffs do not suggest that the recon-veyances evidence fraud or collusion on the part of the Bushes. The deeds tend to establish that the initial transfers were arms-length transactions rather than the reverse, because the monthly payments on the credit portion of the original acquisition price, seemingly at least, were made by the purchasers between acquisition and recon-veyance. Furthermore, motivation for the reconveyance, we can properly surmise, is found in the (interim) adverse decision (to defendants) in the Court of Appeal and in W. H. Owen’s warranty obligation arising from the original transfers. More important than these considerations, however, is the fact that plaintiffs do not allege the reconveyances are evidence of fraud or some sort of fraudulent complicity on the part of the Bushes.

This phase of the litigants’ controversy should and will be concluded on the present record. Conveyance of the property following the Court of Appeal’s denial of rehearing, not reprobated by law or otherwise inhibited, and of no evidentiary or other value insofar as is concerned resolution of the joined issues in this litigation, is legally of no moment. The matter of the defendant Bushes acquisition on the strength of the public record is not moot. This motion is denied.

For the foregoing reasons, the judgment of the Court of Appeal is set aside and the plaintiffs’ suit is dismissed at their cost.

      . Petitioners do not attack the transfers as being in derogation of Henrietta Owen’s community rights [see C.O. art. 2404], presumably because she signed the deeds along with her husband.

      . The property values quoted here were established by expert evidence at the trial and were uncontroverted.

      . Article 2444 provides in full that:
      “The sales of immovable property made" by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

      . W. H. Owen also testified that he put aside $1400 for his mother, money he received from a mineral lease, presumably sometime after his father’s death in 1957.

      . For discussions of the legal concept of simulations, see Lemann, Some Aspects of Simulations in France and Louisiana, 29 Tul.L.Rev. 22 (1954) and 35 La.L.Rev. 192 (1974).

      . For discussions of the area of donations omnium bonorum, see 34 TubL.Rev. 228 (1974) ; 23 La.L.Rev. 433 (1963) ; and 6 La.L.Bev. 98 (1944).

      . It is not a matter of record in this case as to which twenty-seven and one-half acre tract encompasses the fifteen acres.

      .Plaintiffs attach to their motion copies of what purport to be two deeds, one from Wayne S. Bush and one from Charles Wayne Bush, to W. H. Owen for the sale of the two twenty-seven and one-half acre tracts Owen previously sold to them. The deeds evidence that Owen re-purchased the property for the same price, the consideration being cancellation of the outstanding balance on the note which was originally given by the Bushes as a portion of the purchase price, and a sum in cash which amounted to the original cash portion supplemented by the monthly payments made on the credit portion between the acquisition and reconveyance.

      . Id.

      . We are not called upon in this litigation to resolve all potential legal controversies between plaintiffs and their brother W. H. Owen. Any such unconcluded additional claims or issues, when and if they arise, will appropriately be resolved at that time.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Albert GRIFFIN.
    No. 57599.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.
    Dennis J. Vidrine, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Albert Griffin, was convicted of armed robbery, La.R.S. 14:64, and sentenced to a term of fifteen years at hard labor, without benefit of parole, probation or suspension of sentence. He seeks reversal of his conviction and sentence on the basis of the following assignment of error:

“Prior to trial of the defendant in the above numbered and entitled cause, defendant, through his counsel, filed a motion to suppress evidence and an amended motion to suppress evidence, wherein defendant sought to suppress for use as evidence any and all evidence relative to identification of the defendant at a photographic line-up held on March 24, 1975, and at a corporeal lineup held on March 25, 1975; and further, to suppress any and all physical evidence collected as a result of said pre-trial identification procedures; and further, to suppress any and all testimony by the victim as to any in-court or out-of-court identification of the defendant. The court denied defendant’s motion on May 28, 1975, and defendant objected to the court’s ruling. The defendant has been prejudiced by the court’s ruling.”

On March 23, 1975 at about 8:00 p. m. Tommy Sonnier, sales clerk at a convenience store in Lafayette, was robbed at gunpoint by a black male. Sonnier, who was engaged in conversation with two children at the time the robber entered, observed his actions for about ten minutes before the crime occurred. The felon entered with nothing over his face, went to the back of the store and rummaged through some cold drink boxes before slipping a nylon stocking over his face and approaching the check-out counter where Sonnier was standing. During the interval before the robbery Sonnier observed the black male both directly and through large mirrors stationed in the store. He testified that he suspected that criminal activity might be afoot but was frightened to call for the police because the suspect could also see his movements.

Shortly after the robbery police investigators asked Sonnier to look through approximately one hundred photographs. He selected two black and white photographs of a person that he said resembled the robber. Both pictures were photographs of the defendant, Albert Griffin. After-wards, Sonnier overheard the police officers conversing out of his presence in a nearby room. He heard one of them say something about a dangerous criminal suspected of having committed other crimes, and he gathered the person he had just identified was the subject of these remarks. But Sonnier testified that he did not get the impression the police had previously suspected the subject of the robbery.

The next day, Sonnier was shown color photographs of five black males and from these he selected a photo of the defendant as a person resembling the robber. Defendant complains that this procedure was unnecessary and tainted by the remarks overheard by Sonnier the previous evening. However, defendant does not argue, and we find no evidence that, this second photographic display was itself im-permissibly suggestive.

The defendant was arrested for the instant crime at 9:26 p. m. on March 24, 1975 at the Lafayette city police station. He had been brought in because of an unrelated charge and his attorney was with him at the time. The following day a live line-up was conducted with the defendant’s attorney present. Because of defense counsel’s objections the participants in the line-up were presented in sitting positions to the viewers so as to compensate for the discrepancies in their heights. Just before entering the room where he observed the line-up Sonnier had a conversation with another robbery victim who was there for the same purpose They discussed the physical characteristics of their assailants and Sonnier concluded that the same person had committed both crimes. However, Sonnier went into the line-up viewing, room without the other robbery victim and independently and positively identified the defendant, Albert Griffin, as the man who had robbed him on March 23, 1975. After making the identification, Sonnier also informed the police that the defendant had on the same plaid trousers he wore on the night of the robbery, a detail concerning the crime of which the officers apparently were not previously aware.

In State v. Chaney, 273 So.2d 259 (La.1973) this Court held that the district judge’s determination on the admissibility of a photographic identification is given great weight and will not be disturbed on appeal unless the preponderance of evidence clearly so mandates. Despite some troublesome aspects of the case, we cannot say that a clear preponderance of evidence has been leveled against the trial judge’s decision.

Sonnier identified the defendant as the robber on three separate occasions. Clearly, his initial identification of defendant from the police photograph files was untainted by any improper procedures. We do not find it likely that the later identifications were impermissibly influenced by the victim’s inadvertently overhearing the conversation in police headquarters to the effect that the person he had identified was a dangerous criminal. Nor do we feel that the identification at the corporeal line-up had any relation to Sonnier’s conversation with the other robbery victim.

We have inspected the first two photographs selected by Sonnier, the second photographic display, and a photograph of the live line-up. Our inspection has uncovered no impermissibly suggestive features in the subject’s appearance. It is unfortunate for the defendant that Sonnier identified defendant’s trousers as well as his person; however, the defendant was represented by counsel who did not object to defendant’s apparel at the line-up, and there is no evidence the police officers were aware of this coincidence beforehand. Consequently we find no' reversible error in the trial judge’s denial of the motion to suppress.

The conviction and sentence are affirmed.

Affirmed.


author: MARCUS, Justice. DIXON, J.,

text:
    STATE of Louisiana v. Corrine GORDON.
    No. 57593.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      William H. Slaughter, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Corrine Gordon was charged by bill of information with intentionally maintaining the place No. 330 Exchange Alley, Suite 401, in the City of New Orleans where prostitution is habitually practiced, in violation of La.R.S. 14:84(2) (pandering). After trial by jury, she was found guilty as charged and was subsequently sentenced to serve three years at hard labor and to pay $60.00 court costs, or in default thereof to serve thirty days in parish prison. On appeal, she relies upon five assignments of error for reversal of her conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 3 AND 4

Defendant contends that the trial judge erred in permitting testimony of sexual acts on days other than that charged in the bill of information and without notice as required by State v. Prieur, 277 So.2d 126 (La.1973).

An employee of defendant testified that she had sexual intercourse for compensation at defendant’s place of business (massage parlor) on the date charged in the bill of information (January 2, 1975). She also testified to having performed sexual acts on other occasions during the period of her employment. She stated that defendant was well aware of her activities and shared in the compensation paid therefor.

Pandering is defined in La.R.S. 14:84 (2) as intentionally “[mjaintaining a place where prostitution is habitually practiced.” (Emphasis added.) La.R.S. 14:82 provides that prostitution is the practice by a female of indiscriminate sexual intercourse with males for compensation. More than one act of prostitution must be offered to prove that the prostitution is “habitually practiced.” The habitual nature of the prostitution is an essential element of the crime charged. Therefore, the testimony relating to the sexual acts performed at defendant’s massage parlor on dates other than the one charged in the bill of information was admissible as part of the crime charged. No Prieur notice was required. Assignments of Error Nos. 1, 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial judge erred in denying her motion for directed verdict of acquittal. She claims that there is no evidence of sexual intercourse or that it was habitually practiced.

There is no merit to this contention. This court can find error in the trial judge’s denial of a motion for directed verdict and reverse the conviction only when there is no evidence of the crime or an essential element thereof. La.Code Crim.P. art. 778 (1966). State v. Douglas, 278 So.2d 485 (La.1973). In the instant case, the witness-employee testified that she performed acts of sexual intercourse at defendant’s massage parlor where she was employed on the date charged in the hill of information (January 2, 1975), as well as on other occasions. Thus, there was some evidence that prostitution was habitually practiced at a place maintained by defendant.

Defendant alternatively argues that we should review the sufficiency of the evidence, citing article 1, section 19 of the Constitution of 1974. We find no merit in this contention. In criminal cases, the scope of this court’s appellate jurisdiction extends only to questions of law. La. Const, art. 5, § 5(C) (1974). Sufficiency of the evidence is a question of fact. The jurisprudence is uniform in holding that this court is without jurisdiction to pass on the sufficiency of the evidence in a criminal case.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial judge erred in denying her motion in arrest of judgment grounded on an alleged defective indictment. She contends that the bill of information is contradictory in that it first states that the offense occurred on January 2, 1975 and then goes on to state “where prostitution is habitually practiced.”

The bill of information charges that:

Corrine Gordon on the second day of January in the year of our Lord, one thousand nine hundred and seventy-five . . . did unlawfully and intentionally maintain the place . where prostitution is habitually practiced, contrary to ... .

In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. La. Const, art. 1, § 13 (1974). The above indictment charges defendant with the crime of pandering under La.R.S. 14:84(2), which provides :

Pandering is the intentional:

(2) Maintaining a place where prostitution is habitually practiced; or

The indictment charges that defendant on January 2, 1975 did unlawfully and intentionally maintain a place where prostitution is “habitually” practiced. This clearly informed defendant that she was being charged with a crime (pandering) on a particular day, which crime included habitualness as an essential element thereof. We find no contradiction in this allegation. Hence, there is no merit in defendant’s contention that the bill of information is defective. Assuming arguendo that the indictment was “contradictory” as alleged, no showing of surprise or prejudice is made. Under these circumstances, defendant’s failure to object to this alleged deficiency in the indictment before verdict constitutes a waiver of her right to complain. State v. Malmay, 315 So.2d 286 (La.1975); State v. James, 305 So.2d 514 (La.1974).

Assignment of Error No. 6 is without merit.

DECREE

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

DIXON, J.,

dissents, being of the opinion the statute on which the prosecution is based is unconstitutional.

      . Article 778 was amended by Act 527, section 1 of 1975 to limit a motion for acquittal to judge trials; however, this amendment was not effective at the time of this trial and is therefore inapplicable.


author: MARCUS, Justice. SUMMERS, Justice

text:
    Robert Claude FERRINGTON et ux. v. Cleavon R. McDANIEL et al.
    No. 57468.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.
    D. G. Brunson, Jonesboro, John J. McKeithen, Columbia, Baker, Culpepper & Brunson, Jonesboro, for plaintiffs-applicants.
    W. Craig Henry, Hudson, Potts & Bernstein, Monroe, for defendants-respondents.
   MARCUS, Justice.

Mr. and Mrs. Ferrington sue for personal injuries sustained by Mrs. Ferrington while in Mac’s Dixie Dandy Store in the late morning of March 5, 1974. Named as defendants are Cleavon R. McDaniel and Cleavon Reggie McDaniel, Jr., owners of said store, and State Farm Fire and Casualty Company, liability insurer of the premises. Plaintiffs allege negligence on the part of defendant store for leaving a box or boxes in one of the aisles of the store which Mrs. Ferrington was traversing in search of some merchandise from the shelves of said store. Plaintiffs further allege that Mrs. Ferrington did not see the box until she had tripped upon it and sustained the injuries complained of. Defendants admitted the accident at the time and place indicated, but denied negligence on their part and alleged contributory negligence on the part of Mrs. Ferrington. The trial judge found no negligence on the part of the store owners and further concluded that Mrs. Ferrington was guilty of contributory negligence. Judgment was rendered dismissing plaintiffs’ suit. The court of appeal affirmed, finding Mrs. Ferrington contributorily negligent. 323 So.2d 880 (La.App.1976). Upon plaintiffs’ application, we granted certiorari.

The sole issues presented in this matter are: (1) the negligence of the store owners; (2) if negligent, whether Mrs. Fer-rington’s contributory negligence bars recovery; and (3) if store owners are liable, the amount of damages plaintiffs are entitled to recover.

The facts relative to liability are generally not in dispute. At about 11:00 a.m. on the morning in question, plaintiffs were shopping in Mac’s Dixie Dandy, a supermarket-type grocery store in Columbia, Louisiana. There are four checkout counters located in the front part of the store. Behind each checkout counter is a rack used to display candy and other miscellaneous items. The racks face an aisle used by the public, making the merchandise thereon accessible to the customers prior to entering the checkout lines. Mr. Ferring-ton pushed the grocery cart as he and his wife traversed the store and selected various items of merchandise from the shelves on which the merchandise was displayed. As they approached checkout counter #1, several people were waiting in line. Before entering this checkout line, Mrs. Fer-rington realized that she wanted to purchase some Red Seal snuff for her mother. She then left her husband with the cart of groceries near counter #1 and proceeded down the aisle to checkout counter #4 where this tobacco product was displayed on a shelf.

A brown cardboard box of Hershey bars protruded sixteen to twenty inches into the aisle from the end of checkout counter #3. This box was described as measuring ten to twelve inches in height, eleven to twelve inches in width, and sixteen to twenty inches in length. Lettering on said box was dark brown. Admittedly, the box had been left there by an employee of the store who had been previously engaged in stocking the candy shelf on the rack behind checkout counter #3 facing this aisle before he departed for lunch. The floor was medium brown to beige in color, and the store was well lighted. As Mrs. Ferring-ton traversed the aisle, she tripped and fell over the box of candy landing flat on her stomach. A flour salesman, who was engaged in preparing a display nearby, witnessed the accident. He testified that he observed Mrs. Ferrington leave the point where she had been standing with her husband, walk down the aisle past counters # 1 and 2 and, as she passed counter #3 with her arms outstretched in the direction of counter #4, she tripped and fell over the box in the aisle. His testimony was that she walked a distance of some twenty feet. Mrs. Ferrington was helped up and thereafter taken to the hospital by her husband for emergency treatment.

While a store owner is not the insurer of the safety of his customers, he owes them an affirmative duty to use ordinary care to keep the aisles, passageways and floors in a reasonably safe condition. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975). The duty includes reasonable inspection of the premises for defects and obstructions to passageway, and reasonable warning of perils which the customers may not see through the exercise of ordinary care. In Kavlich v. Kramer, supra, we stated:

Self-service grocery stores require customers to look for and to find the objects which they wish to purchase, these objects are placed upon shelves of various sizes and heights. Discernment of a particular object for purchase requires fairly strict surveillance of the shelving in order to discover the item desired. Numerous items displayed upon shelving along the aisles or walkways in self-service stores entice the customers to focus their eyes upon the display rather than on the surface upon which they walk. . . .

Under the facts of this case, we find that the store owners breached the duty to keep the aisle in a reasonably safe condition. The box left in the aisle created an obstruction which could not easily be seen by customers who were inspecting merchandise on the shelves as they shopped in this self-service supermarket-type grocery store. Clearly, this constituted negligence on the part of the store owners. Secondly, we find no merit in defendants’ contention that Mrs. Ferrington was guilty of contributory negligence. We are unable to say that she acted unreasonably in focusing her eyes on the Red Seal snuff as she attempted to secure it from the shelf on which it was displayed and in not seeing the box located on the floor of the aisle. She had no reason to believe that there would be a trap-like obstruction in her passageway. Accordingly, we conclude that the court of appeal erred in finding Mrs. Ferrington guilty of contributory negligence. The facts of this case are similar to those in Paxton v. Ballard, 289 So.2d 85 (La.1974), in which we found no contributory negligence on the part of a store customer who tripped over a lower shelf which jutted some eighteen to twenty-four inches out into the aisle beyond the upper display shelves. We found that the shelf, combined with the brightly colored articles on the shelf, created a floor-level obstruction, which could not be easily seen by the customer and that the extended lower shelf created a trap.

Since we find that the accident herein was caused by the negligence of the store owners and that Mrs. Ferrington was free of contributory negligence, defendants are liable to plaintiffs for damages sustained by them as a result of this accident.

The district court, as well as the court of appeal, dismissed plaintiffs’ suit; therefore, there was no consideration of the plaintiffs’ claim for damages. In accordance with our usual procedure, this case will be remanded to the court of appeal for assessment of damages. See Felt v. Price, 240 La. 966, 126 So.2d 330 (1961).

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside, and judgment is rendered in favor of plaintiffs, Robert Claude Ferrington and Vergie Ferrington, and against Clea-von R. McDaniel, Cleavon Reggie McDaniel, Jr., d/b/a Mac’s Dixie Dandy, and State Farm Fire and Casualty Co. in such sum as may hereinafter be fixed. The case is remanded to the Court of Appeal, Second Circuit, for the assessment of damages. All costs are taxed against defendants.

SUMMERS, J., dissents for the reasons assigned.

SUMMERS, Justice

(dissenting).

I would not overrule the trial court and the unanimous judgment of the Court of Appeal on this purely factual case. See 323 So.2d 880 (La.App.1976). In these cases this Court has of late repeatedly granted certiorari to review factual determination contrary to the settled rule.


author: DIXON, Justice. SUMMERS, Justice

text:
    SERVI-CLEAN INDUSTRIES, INC. v. TONTI MANAGEMENT CORPORATION.
    No. 57341.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.
    Walter E. Kollin, Metairie, for defendant-respondent.
    Joseph W. Nelkin, New Orleans, for plaintiff-applicant.
   DIXON, Justice.

We granted writs in this case to review plaintiff’s contention that the trial court and Court of Appeal erred in failing to find that the institution of suit by Servi-Clean, one of the creditors of McCarthy Construction Company, Inc., constituted an assertion of the rights of all of McCarthy’s creditors under provisions of the Louisiana Bulk Sales Act, R.S. 9:2961-2968.

On August 27, 1971 Tonti Management Corporation purchased from McCarthy Construction Company the Governor House Hotel in New Orleans, including all fixtures, furniture and equipment used in the hotel’s operation. A restaurant and cocktail lounge formed part of the hotel’s operation. The equipment included stoves, refrigerators, tables, chairs and a cash register. Tonti admitted that the requirements for a sale under the Bulk Sales Law were not complied with.

On March 20, 1972 Servi-Clean, a creditor of McCarthy, filed suit against Tonti, alleging Tonti was indebted to Servi-Clean in the sum of $3899.37 plus interest and attorneys’ fees, representing the balance due on a promissory note issued by McCarthy in favor of Servi-Clean. Plaintiff alleged that Tonti, as transferee of McCarthy in violation of thé Bulk Sales Law, “should be held liable to petitioner and any other creditors of McCarthy Construction Company, Inc., if there be any, as receiver for the fair value of all property so transferred to it.” Tonti answered, averring that the sale was not subject to the provisions of the Bulk Sales Law.

On February 16, 1973, more than one year after the sale of the Governor House from McCarthy to Tonti, Servi-Clean filed a petition in intervention, asserting a class action, with itself as class representative, on behalf of all creditors of McCarthy. This intervention by Servi-Clean is at the crux of the present controversy. Servi-Clean filed a motion for summary judgment at the time the intervention was filed.

Tonti Management Corporation thereafter excepted to the petition in intervention, on the grounds of no right or cause of action and prescription.

On March 30, 1973 the first of a series of judgments was rendered in this matter. The trial judge held (1) not only was summary judgment not available for the plaintiff, but that the record, including all pleadings and depositions filed therein, failed to disclose a cause of action against the defendant in the original action and (2) the exceptions of no cause of action and prescription filed by Tonti in response to the petition in intervention were well-founded and therefore sustained. Accordingly, the trial court dismissed both the original petition and the petition in intervention.

Servi-Clean appealed. Servi-Clean Industries Inc. v. Tonti Management Corp., 294 So.2d 580 (La.App. 4th Cir. 1974). In the course of its opinion, the court held:

“We find the trial court committed an error of law in sustaining the peremptory exception ex proprio motu to plaintiff’s petition. However, we find the ruling of the trial court was correct in sustaining the exception of prescription to the inter-venor’s petition in intervention.
“Herein we are not passing on the procedural correctness of a creditor of a trans-feror (seller) to bring a class action for other alleged creditors of a transferor under LSA-C.C.P. Articles 591 through 597 to recover a debt under the provisions of the Bulk Sales Law. For the purpose of passing on the exception of prescription of one year we are assuming, argu-endo, that the class action procedure utilized by Servi-Clean is correct.
“The sustaining of the exception of prescription is restricted to the effort asserted by Servi-Clean to collect the alleged debts by means of the petition in intervention on the class action. Servi-Clean had notice of the failure of the buyer to comply with the requirements of LSA-R.S. 9:2961 for more than one year prior to the filing of the petition in intervention. 294 So.2d 580, 582, 583.

The Court of Appeal went on to hold that Tonti had violated the Bulk Sales Law and was therefore liable to the plaintiff. The court concluded:

“It was admitted that the buyer and seller did not comply with LSA-R.S.. 9:2961 et seq. and it was further admitted that should we find this sale is within the purview of this law, the plaintiff is entitled to judgment.
“Accordingly, for the above and foregoing reasons, the judgment of the trial court sustaining the exception of prescription of one year to the petition in intervention in the class action is sustained, and the class action is dismissed. The judgment of the trial court sustaining the peremptory exceptions, ex proprio motu, to the plaintiff’s petition is reversed and there is judgment herein in favor of Servi-Clean Industries, Inc., plaintiff-appellant, and against Tonti Management Corporation, defendant-appellee, in the sum of $3,899.37, together with 8 per cen-tum per annum interest thereon from June 17, 1971, until paid, plus 10 per cent of the principal and interest as attorney’s fees.” 294 So.2d 580, 583-584.

This decision was handed down on January 8, 1974. Both parties applied for a rehearing. Servi-Clean, in its application for a rehearing, admitted that it was not entitled to a personal judgment against Ton-ti for McCarthy’s debt, as granted by the Court of Appeal, but was limited to a judgment against Tonti as receiver, for its pro rata share of the fair value of the property transferred by McCarthy to Tonti. Servi-Clean also alleged that the Court of Appeal erred in finding the claims of the other creditors prescribed, and dismissing the petition in intervention, and asked for a rehearing on that issue.

Tonti, in its application for a rehearing, alleged that the court erred in holding that the Bulk Sales Law applied to the sale of the Governor House, and, more seriously, that the court erred in holding Tonti personally liable to the creditor for the full amount of the claim, rather than as receiver for the fair value of all the property transferred.

The Court of Appeal granted a limited rehearing on February 6, 1974:

“ON APPLICATION FOR REHEARING
“We grant a rehearing herein for consideration of:
“The extent of liability of Tonti Management Corporation for the debts of the transferor, McCarthy Construction Company.
“Arguments on briefs only to be submitted within IS days from this date.
"In all other respects the applications for rehearing are denied.

“Limited rehearing granted.”

294 So.2d 580, 584. (Emphasis added).

No application for writs was taken by Servi-Clean from this action of the Court of Appeal. Plaintiff, Servi-Clean, apparently was of the belief that the Court of Appeal in granting a rehearing as to the “extent of liability of Tonti . . . for the debts of . McCarthy” was reopening the entire matter of Tonti’s liability to McCarthy’s creditors.

On rehearing, the Court of Appeal remanded the case to the trial court for the sole purpose of determining the fair value of the property received by Tonti, the total amount of viable claims and their dignity and rank. In its decree on rehearing the court stated:

“Accordingly, the judgment of the trial court is reversed and these consolidated cases are remanded to the trial court for the restricted purpose of further proceedings in accordance herewith. All costs of this appeal are assessed against Tonti Management Corporation, and the assessment of all other court costs to await final determination of the cases.” 294 So.2d 580, 584-585.

This decree was handed down on May 10, 1974. No application for writs was made to this court from the judgment remanding the case to the trial court. Instead, Servi-Clean filed in the trial court a rule to show cause why it should not be designated class representative for the creditors in a class action under the Bulk Sales Law. On June 21, 1974 the trial judge dismissed the rule, believing that the Court of Appeal had affirmed the earlier decision dismissing the petition in intervention.

From the dismissal of the rule to show cause, Servi-Clean applied for writs to the Fourth Circuit and also appealed. Writs were denied on July 16, 1974 by the Fourth Circuit. On August 15, 1974 Servi-Clean applied for writs in this court which were denied on October 11, 1974 with the notation, “Writ denied, reserving the right, if any, to review on appeal.” La., 300 So.2d 845.

On November 11, 1975 came the final decision of the Court of Appeal, from which these writs were granted. Servi-Clean Industries, Inc. v. Tonti Management Corp., 322 So.2d 445 (La.App. 4th Cir. 1975). In that opinion the court stated:

“The sole issue in this appeal is whether our judgments in the previous appeal (on original hearing and on rehearing) reversed the judgment of the trial court in its entirety, or whether our judgments affirmed the dismissal of the petition of intervention, while reversing only that part of the trial court judgment pertinent to the original demand and remanding for a determination solely of that demand. The decision, as to whether Servi-Clean’s right (if any) to represent all or most of McCarthy’s creditors in this action has prescribed, was clearly pronounced on original hearing. The decision on that issue was not affected by the limited grant of rehearing, and the application for rehearing as to that issue was denied. Neither the trial court nor this court (if we were inclined to do so) has the power and authority to now reconsider and modify or change the decision as to that issue. Whether or not the Supreme Court can do so, in view of Servi-Clean’s failure to apply for certiorari when part of a trial court judgment was affirmed and part was reversed and remanded, is not for us to decide.
“The judgment dismissing the rule is affirmed.” 322 So.2d 445, 447-448.

In a footnote the Court of Appeal further explained its previous action:

“This court did not decide in the previous appeal (and indeed could not decide, since the judgment appealed from simply maintained an exception of no cause of action) whether or not Servi-Clean’s timely suit interrupted prescription as to all claims. This court did decide that the intervention asserting a class action (if necessary to interrupt prescription as to the other claims) came too late.” 322 So.2d 445, 448.

On the application of Servi-Clean we granted writs because of uncertainty as to the effect of the holding that the intervention asserting the class action “came too late” following a contention that Servi-Clean’s timely' suit did not interrupt prescription as to all claims, in spite of the provision of R.S. 9:2963 that “at the suit of any creditor” the purchaser should be liable to all the creditors as receiver if the Bulk Sales Law is not observed.

The record is clear that the trial court sustained an exception of no cause of action on its own motion to Servi-Clean’s principal demand, and sustained an exception of no cause of action and prescription against the intervention in which plaintiff attempted to assert a class action. In its first opinion, the Court of Appeal reversed the ruling of the trial court holding that Servi-Clean’s first petition did not state a cause of action, but affirmed the trial court in sustaining the exceptions to the petition in intervention. Then it was that the Court of Appeal 'erroneously granted Servi-Clean a judgment against Tonti for the full amount of the original claim.

In this context the grant of limited rehearing by the Court of Appeal is unambiguous. The judgment of the trial court sustaining the exception to the intervention was left intact.

That portion of the Court of Appeal judgment has now become final. It put an end to one portion of the litigation. The trial court held, and the Court of Appeal affirmed the holding, that the intervention should be dismissed upon the exceptions of no cause of action and prescription.

An intervention is a demand incidental to the main demand (C.C.P. 1031), may be tried separately, and may result in a separate judgment (C.C.P. 1038) or a partial judgment (C.C.P. 1915).

C.C.P. 2167 governs the finality of judgments of appellate courts:

“A judgment of an appellate court becomes final and executory when the delay for applying for a rehearing has expired and no application therefor has been made.
“When an application for a rehearing has been applied for timely
“(1) A judgment of the supreme court becomes final and executory when this application is denied; and
“(2) A judgment of a court of appeal becomes final and executory when the supreme court denies a timely application for a writ of certiorari in the case; or on the expiration of thirty days after the denial of a rehearing by the court of appeal, if no timely application has been made to the supreme court for a writ of certiorari.”

Since the holding of the Court of Appeal that the intervention was properly dismissed was a final determination of an action or proceeding, Servi-Clean could only hope to obtain relief from that judgment in this court. Since no timely application was made to this court for a writ of certiorari within thirty days after the denial by the Court of Appeal of Servi-Clean’s application for rehearing on the question of the dismissal of the petition in intervention, that judgment became final and was not subject to reconsideration.

The question of whether Servi-Clean’s original petition interrupted prescription running against claims of other creditors is not now before us, and has yet to be litigated. No other creditor of McCarthy is before us, nor does it appear from the record that any others have appeared in this case in the lower courts.

The Court of Appeal correctly affirmed the dismissal of the rule to show cause, and its judgment is affirmed at relator’s cost.

SUMMERS, J., concurs for reasons assigned.

SUMMERS, Justice

(concurring).

I concur in the result because I do not agree with the apparent approval of Stevens v. Board of Trustees, 309 So.2d 144 (La.1975) by the majority opinion.

      . Specifically, plaintiff relies on a portion of R.S. 9:2963, which states :
      “Any person to whom any of the property mentioned in R.S. 9:2961 shall be so transferred, who shall pay any part of the consideration therefor to such transferor, or who shall execute or deliver to the trans-feror or to his order, or to any person for his use, any promissory note or other evidence of indebtedness for the transfer or any part thereof without first having demanded and received from the transferor or from his agent the statement provided for in R.S. 9:2962B. verified as therein provided, and without paying or seeing to it that the purchase money or other consideration of the transfer is applied to the payment of the bona fide claims of the creditors of the transferor pro rata according to the dignity of their several claims as shown upon the verified statement, and without first having sent the notices of said transfer and such statement of creditors as provided for in R.S. 9:2962C., shall at the suit of any creditor, be held liable to all the creditors of the transferor as receiver for the fair value of all the property so transferred to him.

      . It was held in the case of MeCaskey Register Co. v. Lumpkin, 195 So. 852 (La. App. 1st Cir. 1940) that the failure to comply with R.S. 9:2961 et seq. is an offense or quasi offense which prescribes in one year.

      . Because of difficult questions which frequently arise in granting limited rehearings, this court presently follows the practice of simply granting a rehearing and requesting argument on the particular points which are of concern. This practice is thought to be preferable, unless, in an extraordinary case, justice seems to require that part of a judgment become final while other issues are further litigated.

      . For a discussion of guidelines which might assist in deciding whether a case is suitable for a class action in Louisiana, see Stevens v. Board of Trustees of the Police Pension Fund, etc., La., 309 So.2d 144 (1975).

      . It is possible to argue that the dismissal of the intervention was not a final judgment as defined in C.C.P. 1841 because it made no determination on the merits of the case:
      “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
      “A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
      “A judgment that determines the merits in whole or in part is a final judgment.” C.C.P. 1841.
      The judgment dismissing the intervention was a determination that the plaintiff did not have available to him the advantages of bringing a class action as a representative of a class of creditors against the defendant. At least to this extent, the judgment, dismissing the intervention “trench (ed) upon the merits of the cause.” This problem was early dealt with in Cary v. Richardson, 35 La.Ann. 505 (1883):
      “It is not always easy to discriminate between interlocutory and final judgments, particularly which, among the former, can or not cause an irreparable injury. There exists, however, a signal difference between the two. Interlocutory judgments are the decrees rendered, whether before or after the suit is ended and all the matters involved therein are set at rest. They are ancillary to, or execu-tory of the final and complete adjudication, and do not pass upon the merits of the controversy. Final judgments are those by which rights of parties, at issue on the merits of the suits, are adjudicated upon partially or entirely. C.C. 538,539. . . .

      “An interlocutory judgment should not trench upon the merits of the cause; but the moment that it does, it acquires a character of finality, which assimilates it to a final judgment and renders it appealable. It is not essential for a judgment to be final, that it should settle all of the rights existing between the parties to the suit. All that is required is, that it determine issues involved on the merits of the action. The judgment is none the less final, because some future orders of the court may become necessary to carry it into effect. The nature of such an order depends upon the effect produced by the adjudication upon the rights and interest of parties. The stage at which it is made is not the test for appellate purposes. If an interlocutory order will finally affect the merits of the case, or deprive a party of any benefit which he may have at the final hearing, an appeal is allowable. ...” 35 La.Ann. 505, 506, 507.
      Granting a limited rehearing is analogous to cases in which this court has limited review when granting writs. Two cases in which we have held that a grant of certiorari limited to the review of certain assignments of error permits the judgment to become final as to all other matters in contest are Deposit Guaranty National Bank v. Shipp, 252 La. 745, 214 So.2d 129 (1968) and Pringle-Associated Mortgage Corp. v. Cox, 258 La. 499, 246 So.2d 841 (1971).

      . One other creditor, Pinkerton’s, Inc., filed suit against Tonti. Its case was consolidated at trial with Servi-Olean’s. See Pinkerton’s, Inc. v. Tonti Management Corp., 294 So.2d 585 (4th Cir. 1974). Pinkerton’s was not involved in the petition in intervention, and is not before us.


text:
    STATE of Louisiana, Appellee, v. Rodrick DAVIS, Appellant.
    No. 57552.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      John G. Williams, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant appeals from three convictions of armed robbery, La.R.S. 14:64, and from concurrent sentences of seventy-five years on each of these charges. Upon his appeal, he urges nine assignments of error.

Context Facts

The robbery occurred at 10:00 a. m. in February, 1975. Two armed robbers entered a finance company office; they took objects of value (money, rings, watches) from each of the three people present in the office.

Based upon information that he was one of the robbers, the defendant Davis was arrested in Austin, Texas in April. He there admitted participation in the robbery and waived extradition to Louisiana.

Davis was then brought back to Natchi-toches. Under separate interrogations by the city and the state police, he voluntarily confessed on each occasion to the present crime. (The occasion for the subsequent state police investigation arose from his participation in other crimes elsewhere.)

Assignment 1

By assignment 1, the admission of both of these confessions is attacked as erroneous.

Preliminarily, we note the lack of merit to a claim of coercion (an alleged threat against the defendant’s girlfriend). The evidence produced by the state sustained its burden of proving beyond a reasonable doubt that the confessions were freely and voluntarily made without duress or coercion.

The defendant also attacks the first (April 15) confession to the city police, however, because of the technical insufficiency of the warnings given to the defendant by the city police prior to his interrogation, under the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The warnings given by the city police were otherwise sufficient, but (as the defendant correctly points out)—even though the accused was informed of his right to an attorney and to have an attorney present during the questioning (as well as his right to an appointed attorney if and when he went to court)—, they did not inform him that during the questioning he had “a right to the presence of an attorney, either retained or appointed” 384 U.S. 444, 86 S.Ct. 1612. See United States ex rel. Williams v. Twomey, 467 F.2d 1248 (CA 7, 1972).

However, for reasons to be stated below, the convictions need not be reversed. Cf., Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

The second confession was given the following day (April 16) to the state police. We first note that, at the time, the state police did not know the contents of the confession to the city police, nor did they in any way use that first confession or the fact that it had been given as a basis of questioning to obtain the second confession. Furthermore, the Miranda warnings in this instance were fully adequate.

The defendant contends, however, that this second confession should be held inadmissible as the fruit or product of the first confession.

He argues, correctly in our opinion, that despite Miranda warnings a second confession is not “voluntary” if it is the fruit or product of an illegal first confession. In securing evidence, the state may not obtain a first statement by violation of constitutional safeguards, and then claim that a second confession secured by reason of the illegal first confession is admissible because (directly as the result of the first illegal admissions) the accused now again freely admits his guilt (since he has already “confessed”, albeit the alleged confession is illegal and inadmissible). See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Nevertheless, if the second confession is truly voluntary and is not a product of the first, it is not inadmissible simply because of any technical deficiency in the Miranda warnings given before the first interrogation. The second confession may nevertheless be admissible, if (granting establishment of the prior technical illegality) it is not obtained by exploitation of the initial illegality, but instead is shown by the state to be sufficiently an act of free will entirely purged of and independent of the primary taint. See Brown v. Illinois at 95 S.Ct. 2259 (1975).

In the present case, the state has sustained its burden in this regard.

In the first place, although the interrogations were only a day apart, they were entirely independent of one another and done by different officers of different departments.

Furthermore, as defendant himself admitted under cross-examination at the trial on the merits (when he took the stand in his own defense), he had already confessed to the crime when first arrested in Texas even before the confession to the city police. Rather than showing that the second confession directly resulted from the first, the evidence at the motion to suppress and at the trial of the merits instead indicates that the defendant freely confessed his participation in this and other crimes on the several distinct interrogations of him by police in Texas and Louisiana.

The second confession is therefore admissible.

With regard to the first confession, it is substantially identical in content to the second one, the latter of which was properly admitted into evidence. The first warnings did emphasize the accused’s right to remain silent and his right not to speak without the presence of an attorney (although admittedly they were deficient in informing him of his right to secure an appointed attorney during the interrogation). We are not faced with a situation where the sole confession or admission introduced into evidence against an accused was taken in violation of Miranda, nor by a situation where actual prejudice is shown or may be presumed to have resulted to him because of the admission of the technically invalid first confession.

Under all of these circumstances, we are unwilling to hold that Miranda requires the invalidation of this conviction because of the technical invalidity of the Miranda warnings given before the first confession, where, in fact, the technically invalid confession under the evidence played no substantial role in the defendant’s conviction. The constitutional values served by Miranda are not eroded by admission of the first confession under the circumstances shown. See Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

We therefore find no reversible merit in assignment 1.

Assignments 2 and 9

The defendant separately robbed three different individuals at the same location. He was charged with three separate armed robberies by three separate bills of information. Upon conviction, he received three sentences, although they run concurrently.

By these assignments, the defendant contends that only one crime was committed, so that therefore he should have been charged by only one bill of information (assignment 2) and should have received only one sentence (assignment 9).

The defendant is charged with armed robbery. La.R.S. 14:64. Under the statute, armed robbery is the theft by use of force of anything of value “from the person of another or which is in the immediate control of another * * * By this statutory definition, three separate crimes were here committed, being three separate robberies from three different persons of different objects of value from each.

No authority is cited to the contrary. A separate act and a separate intent was required for each victim; therefore, there was a separate offense against each person robbed. Cf: State v. Richmond, 284 So.2d 317 (La.1973); Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970); 22 C.J.S. Criminal Law § 9(4) at Note 43.1, p. 36 (1961). Cf. also, Moton v. Swenson, 488 F.2d 1060 (CA 8, 1973). We are thus not here faced with a situation where the same act or conduct is charged as the basis for allegedly separate crimes. See State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972).

We note that the defendant does not complain of the consolidated trial under separate indictments. La.C.Cr.P. art. 706; State v. Richmond, 284 So.2d 317 (La.1973). In the absence of objection at the time or prejudice, no reversible error so occurred. State v. Peters, 298 So.2d 276 (La.1974).

We find no merit in these assignments.

Assignment 3

We find ño merit to this assignment. The defendant objected when the state questioned a victim as to what the accused had said to him during the course of the robbery. The basis for the objection is that the state did not give written notice, prior to trial, of its intent to use the defendant’s statement, as allegedly required by La.C.Cr.P. art. 768. However, statements which, as here, are admissible as part of the res gestae (being made during the course of the criminal activity) are not subject to the advance notice required by Article 768. The notice applies to confessions or inculpatory statements introduced to prove guilt independent of any other basis for admissibility. State v. Richmond, 278 So.2d 17, 23 (La.1973); State v. Fink, 255 La. 385, 231 So.2d 360 (1970).

Assignments 4 and 7

A victim testified that the robber identified as the defendant was armed with a sawed-off .410 shotgun and that the other robber was armed with a small-calibre pistol. The other victim testified to similar effect. After their testimony as to the weapons used, the prosecutor showed each of them a sawed-off shotgun and a pistol and asked them if the weapons used in the robbery were similar to the weapons shown.

The defendant objected to the prejudicial and inflammatory effect before the jury of showing these witnesses unidentified weapons. Assignment 4.

Obviously, by so doing, the prosecutor skirted reversal. State v. Foret, 196 La. 675, 200 So. 1 (1941). There, the jury was shown a steer which was the alleged object of the theft, without the prosecutor making a formal showing by authenticating the steer as the one stolen.

In reversing in Foret, we spoke of the undue prejudice that results, where the physical object so shown is not connected by evidence with the defendant; for there is then a natural tendency of jurors to infer the connection simply from mere viewing of the material object, although such connection is not proved. The viewing tends without proof prejudicially to associate the accused with the deadly weapon or other object. See 4 Wigmore on Evidence, Section 1157, p. 340 (Chadbourn rev., 1972). Accordingly, before the object is introduced or viewed at the trial (or, at least, before the party’s case is closed), the physical object must normally be “authenticated” by evidence showing the defendant’s personal connection with it, such as, for instance by proving the chain of custody. 7 Wigmore on Evidence, Section 2129 (3d ed.1940).

A majority of this court has concluded, however, that reversible error did not here occur under the limited facts here presented. However, we note that the practice here followed is discouraged, because of its inherent possibility of prejudice and in order to assure that an accused is convicted only on the basis of legally admissible evidence.

The limited facts which, in the present case, we find excuse from reversal the showing of the “similar” weapons to the witnesses are as follows:

No effort whatsoever was made to connect them with the accused or to claim that the weapons were the ones used in the robbery ; or that the accused himself ever had access to similar weapons; therefore, the accused’s connection with weapons similar to those exhibited was not a serious issue of the trial. The weapons themselves were exhibited to the witnesses only after they themselves had fully described the weapons used in the robbery. There was no issue whatsoever that, in fact, weapons similar to those exhibited were not used in the robbery. There is not the slightest intimation that, in fact, any weapons used in the crime were not admissible, such as by reason of illegal seizure. Aside from exhibiting the weapons to the witnesses to ascertain they were similar to those used, no effort was made to exploit the viewing, such as by demonstrative use or in argument.

Finally, the lack of definitive guide (until this opinion) disapproving (as we do now) of the procedure here used is an additional reason not to reverse here, in the absence of any significant prejudice to the accused, considering that the evidence regarding guilt is great.

We therefore find no cause for reversal presented by Assignment 4.

Assignment 7 is based upon the failure of the prosecutor to introduce into evidence the weapons alleged to have been used in the robbery. Aside from the circumstance that this alleged error was not urged until after the jury verdict of guilty (and might therefore be deemed waived, La.C.Cr.P. art. 841), the state’s witnesses testified that guns were actually used in the commission of the robbery. We find no authority that, in addition to this testimony, the state must introduce the weapons used in order to prove the offense of armed robbery.

We therefore do not find merit m assignment 7.

Other Assignments

Assignments 5 and 6 relate to the state’s questioning the defendant under cross-examination. The state queried him why he had not attempted to have his employer or co-employee come from Texas, to support his alibi testimony that he was working in Texas on the date of the crime. The questions do not appear to exceed the proper scope of cross-examination, and no authority is cited to the contrary.

Assignment 8 relates to the denial of a new trial on the ground of newly discovered evidence. The non-frivolous basis for the motion is that, after the trial, a state rebuttal witness (who had identified the defendant as present on the premises shortly before the robbery) was no longer certain of her identification of the defendant.

We find no abuse of the trial court’s discretion in denying the motion. In so concluding, we consider the testimony from which the court may reasonably have drawn an inference of intimidation of the witness by the accused’s family after her testimony. We also take into consideration the somewhat incidental nature of her testimony (which placed the accused at the scene near in time to the robbery, but did not identify him as participating in the crime) in the light of the positive eyewitness identification of the accused by the victims of the crime.

Decree

For the reasons assigned, we affirm the conviction and sentence.

AFFIRMED.

SUMMERS and CALOGERO, JJ., concur.

      . In addition to the circumstances that the second confession did not result from the first confession nor contain any less admission of guilt than the first, the testimony of the several eyewitnesses fully proves the armed robberies’ occurrence in accord with the confessions.

      . In brief, assignment 9 is designated as assignment “8”. (In brief, assignments 5 and 6 as made to the trial court are consolidated as assignment 5, and the subsequent assignments be numbered accordingly.) In our discussion, we shall use the numerical designation in the trial record.