author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Leroy SMITH.
    No. 57214.
    Supreme Court of Louisiana.
    March 29, 1976.

      Numa V. Bertel, Jr., Orleans Indigent Defender Program, 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.
   CALOGERO, Justice.

Defendant Leroy Smith was charged with, and convicted of, distributing heroin, a violation of R.S. 40:966(A). He was sentenced to life imprisonment. Defendant Smith assigned eight errors which he alleged occurred at the trial which mandate a reversal of his conviction. Four of these have been abandoned and will not be considered on this appeal. State v. Domingue, 298 So.2d 723 (La.1974). The other four have been consolidated into two arguments.

ASSIGNMENTS OF ERROR NOS. 4 and 7.

In these two assignments, defendant argues that the trial court erred when it refused to grant a mistrial after allegedly prejudicial remarks were made by a state witness and the prosecutor.

The first remark was made by Officer Gail Roberson, the undercover agent who purchased the illegal substance from defendant Smith. She testified that Leroy Smith handed her six packages of heroin. Defense counsel objected to this reference to heroin on the grounds that the officer could not have known that the packages did in fact contain heroin. Counsel thereupon moved for a mistrial. The trial judge sustained the objection to the witness’ use of the word heroin and admonished the jury to disregard the witness’ statement that it was heroin which was in the packages. He refused, however, to grant the defense motion for a mistrial.

Article 771 of the Code of Criminal Procedure provides that the trial judge shall “promptly admonish the jury to disregard a remark or comment made during the trial . . . when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant ... in the mind of the jury.” The article further provides that the trial judge “may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.” Since the trial judge did promptly admonish the jury to disregard the remark, the issue before this Court is whether the trial judge abused his discretion when he decided that the admonition was sufficient to cure the effect of the witness’ remark.

Defendant Smith was on trial for a single act of distribution of heroin which occurred when he sold six tin foil packages to Officer Roberson. The fact that these packages contained heroin had been mentioned repeatedly during the trial before this witness’ remark: by the prosecutor in opening argument; by the chemist who analyzed the substance in the packages; by the defense attorney himself who said in cross-examination of Agent Stone that Officer Roberson thought narcotics was in the packages; and by this witness who had already testified that she had “purchased heroin” from Smith on this occasion. There had been no objection to any of these comments, each of which took place prior to the testimony here challenged, that the packages contained the illegal substance. Because the witness’ remark did not establish anything more than what had been previously mentioned repeatedly without objection, we hold that the trial judge did not abuse his discretion when he decided that an admonition to the jury was sufficient to cure any prejudicial effect in the remark and to assure defendant Smith a fair trial. See State v. Smith, 285 So.2d 240 (La.1973).

The second remark in question was made in closing argument by the prosecutor who said:

“And who would be better qualified to infiltrate the narcotic community in this City of New Orleans than a former addict or a person who himself is in the drug business such as Calvin Clark and Emanuel Stewart. Who would be better qualified to know who’s pushing dope and who’s not pushing dope than someone who has used dope in the past or is presently using dope.”

Defense counsel moved for a mistrial on the grounds that there had been no evidence at trial indicating that the defendant was an addict, and that the prosecutor’s statement was outside the scope of argument.

The district attorney’s statement did not refer at all to the defendant, but to informers who work in conjunction with police officers. The two men mentioned, Calvin Clark and Emanuel Stewart, are two addict/informers who had figured prominently in the trial because they had led the undercover police to Leroy Smith and had been present at the sale. Much of defense counsel’s cross-examination of state witnesses centered on an attempt to discredit these two informers because they were addicts receiving money from the state for informing on narcotics dealers. The district attorney’s reference was obviously to these two men and others like them who are addict/informers, not to defendant Smith. Notwithstanding this fact, the trial judge admonished the district attorney in the presence of the jury that he must remain within the bounds of the evidence presented.

We find no abuse of discretion on the part of the trial judge in refusing to grant a mistrial under these circumstances, and consequently we find no merit to these assignments of error.

ASSIGNMENTS OF ERROR NOS. 6 and 8.

In these two assignments, defense counsel contends that the trial judge erred when he allowed the case to go to trial on a bill of information rather than upon a grand jury indictment. Defendant Smith argues that, because his trial was held after the effective date of the Louisiana Constitution of 1974, the provision of that Constitution which mandates that “No person shall be held to answer for a . crime punishable by life imprisonment except on indictment by a grand jury” applied to his trial. La.Const. art. I, § 15 (1974); C.Cr.P. art. 382 (1974). Defendant urges this Court to reverse his conviction and require the state to institute any new proceedings against him by grand jury indictment.

Although the defendant’s trial was held in February of 1975, after the effective date of the 1974 Constitution, he was charged in July of 1974, while the Constitution of 1921 was in effect. Under the 1921 Constitution, only capital crimes had to be charged by means of grand jury indictment. La.Const. art. I, § 9 (1921); C. Cr.P. art. 382 (1966). Crimes punishable by life imprisonment were properly charged by a bill of information. The bill of information charging Leroy Smith with distribution of heroin was, therefore, valid at the time it was filed. Moreover, the state could properly try Smith on this charge, even after the effective date of the 1974 Constitution because Art. 14, Sec. 23 of that Constitution provides that “all . suits, proceedings, civil or criminal liabilities, prosecutions . . . and rights existing on the effective date of this Constitution shall continue unaffected.” The criminal prosecution which had been properly instituted against Smith and which was pending on the effective date of the 1974 Constitution remained a valid prosecution on which he could be tried and convicted.

These assignments of error lack merit.

Accordingly, the conviction and sentence of Leroy Smith for distribution of heroin is affirmed.

      . The crime for which defendant was tried, distribution of heroin, is punishable by life imprisonment, R.S. 40:966(B), and Smith was in fact sentenced to life imprisonment.

      . The Louisiana Constitution of 1974 became effective at midnight, December 31, 1974.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Stephen BERRY.
    No. 57202.
    Supreme Court of Louisiana.
    March 29, 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. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On April 2, 1975, defendant Stephen Berry was convicted by an Orleans Parish jury of armed robbery, a violation of La.R.S. 14:64, and was sentenced to 99 years at hard labor. He reserved eleven assignments of error but on appeal urges only two of these: Assignment of Error No. 2 pertains to the trial court’s denial of a motion for change of venue; Assignment of Error No. 11 complains of a denial of a motion for new trial also based upon the failure to grant defendant a change of venue.

In a previous prosecution unrelated to the instant case, defendant was convicted on July 27, 1974 of the rape-murder of a student nurse in a housing project in Orleans Parish. The case received extensive notoriety because it involved a brutal crime perpetrated against a relative of a prominent public official. For the rape-murder conviction defendant received a sentence of life imprisonment.

In support of his motion for a change of venue in the instant armed robbery case, defendant introduced evidence of newspaper and television publicity which occurred between January 1, 1975 and the commencement of the trial on April 2, 1975. At the hearing on the motion, the defendant did not attempt to introduce any other evidence, but chose to rest his case on the content of this publicity.

The grounds for change of venue are set forth in Article 622 of the La. Code of Criminal Procedure:

“Art. 622. Grounds for change of venue
“A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
“In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

Some relevant factors in determining whether to change venue are (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. State v. Bell, 315 So.2d 307 (La.1975).

Other factors considered by courts in various jurisdictions include the degree to which the publicity has circulated in areas to which venue could be changed, the care exercised and the ease encountered in the selection of the jury, the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors, and the peremptory challenges and challenges for cause exercised by the defendant in the selection of a jury. See, generally, Annotation 33 A.L.R.3rd 17 (1970).

In a motion for change of venue the defendant has the burden of showing that he cannot obtain a fair trial in the parish where the prosecution is pending. State v. Stewart, La., 325 So.2d 819, decided Jan. 19, 1976; State v. Dillard, 320 So. 2d 116 (La.1975); State v. Bell, supra; State v. Richmond, 284 So.2d 317 (La. 1973). Article 622 of the La. Code of Criminal Procedure requires more than mere knowledge by the public of the facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Stewart, supra; State v. Dillard, supra; State v. Flood, 301 So.2d 637 (La.1974).

Under the test adopted by the La. Code of Criminal Procedure, the fact that a jury can be selected because the requisite number of prospective jurors are not subject to a valid challenge for cause does not establish that a change of venue is not necessary. As we stated in State v. Bell, supra, quoting from Official Revision Comment (b) to La.C.Cr.P. art. 622:

“ * * * The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.” 315 So.2d at 310.

In the present case, the defendant introduced eleven articles which were published in two newspapers serving Orleans Parish, between January 1, 1975 and April 2, 1975, the date of the trial. Seven of the articles concerned the instant case and four were related to the defendant’s earlier rape-murder conviction. All of the latter were stories about the appeal of a trial court gag order to the United States Supreme Court and only briefly mentioned that the defendant had been convicted of murder. The other articles concerned the instant armed robbery case but most of them also referred to the defendant’s prior murder conviction. In one, an assistant district attorney was quoted as saying:

“We want to make sure we have him permanently convicted. It’s like putting the frosting on the cake.”

Another article, which appeared on March 27, 1975, recounted the testimony of witnesses at a pre-trial hearing concerning the facts of the crime and the identification of the defendant in a police line-up.

A television station broadcast separate interviews of the defendant and the district attorney on three different days before the trial. The interview with the defendant, to which he voluntarily submitted, appeared on newscasts at 6:00 P.M. and 10:00 P.M. on March 8 and 9, 1975. The interview with the district attorney appeared at 6:00 P.M. and 10:00 P.M. only on March 8, 1975. On April 1, 1975, portions of the segments played on March 8 and 9 were replayed and the effort of defendant to secure a change of venue was also reported. In the interviews references were made to the defendant’s prior conviction, his incarceration at Angola, and to his criminal record, but throughout he maintained his innocence of the crimes. The district attorney in his interview merely stated that the defendant had a right to appeal but that he believed the conviction would be affirmed.

Nevertheless, there was absolutely no evidence of the effect, if any, this pre-trial publicity may have had on the state of the public mind regarding the defendant. Although there was testimony that the broadcast coverage extended throughout the entire parish, and we assume the newspaper circulation was equally comprehensive, there is no evidence of how many persons viewed the broadcasts and read the articles. There is no evidence in the record of the extent to which prospective or trial jurors were familiar with or affected by the publicity. The headlines of the articles were not' inflammatory or overly bold, and the defendant presented no testimony as to their location in the newspapers.

The granting or denial of change of venue rests within the sound discretion of the trial judge and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Dillard, supra; State v. Stewart, supra; State v. Richmond, supra. Under the,evidence presented to support the defendant’s motion for change of venue, we cannot say that the trial judge abused his discretion. He reasonably could have decided that the defendant failed to meet his burden of proving such prejudice in the public mind that a fair and impartial trial could not be obtained in the parish.

The assignments of error lack merit.

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


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Warren HARVEY.
    No. 57203.
    Supreme Court of Louisiana.
    March 29, 1976.

      Salvatore Panzeca, Racivitch & Weg-mann, George M. Leppert, 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.
   SANDERS, Chief Justice.

The State charged the defendant, War-rent Harvey, with armed robbery in violation of LSA-R.S. 14:64. In October, 1974, the jury found Harvey guilty as charged, and the court sentenced him as a multiple offender to serve sixty-five years imprisonment without benefit of parole, probation, or suspension of sentence. LSA-R.S. 15:-529.1. On appeal to this Court, he relies upon four assignments of error, which he has consolidated into three arguments.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns as error the trial court’s ruling denying his motion to quash on the ground that women were excluded from that petit jury panel. Defendant urges this Court to refrain from following the United States Supreme Court’s decision in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), and to adopt instead the rationale of the dissent in that case.

This Court has previously applied Daniel to several cases. See, e. g., State v. Roberts, La., 319 So.2d 317 (1975). Defendant’s trial occurred before the Supreme Court’s decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); therefore, under the Daniel decision and under the jurisprudence of this Court following Daniel, this assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant assigns as error the trial court’s action overruling defense counsel’s objections to cross-examination of a defense character witness about his knowledge of previous arrests of the defendant. The witness, Claude Bordelon, was a correctional officer at the penitentiary who had known the defendant when the latter was an inmate there. .Bordelon testified that the defendant had worked for him personally; that while the defendant was at Angola, he had been a trustee and had taught other prisoners; that the defendant had served as the warden’s houseboy and chauffeur on Bordelon’s recommendation; and that he personally had loaned the defendant $500.00, although he had never helped any other former convict in that manner. Over defense objections, the prosecuting attorney questioned Bordelon about whether he knew of several prior arrests of the defendant; Bordelon acknowledged his awareness of most of them.

It is well established in Louisiana that it is not reversible error for the prosecution to question a defense character witness about his knowledge of prior arrests of the defendant. State v. Banks, La., 307 So.2d 594 (1975); State v. Ivy, La., 307 So.2d 587 (1975); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); State v. Powell, 213 La. 811, 35 So.2d 741 (1948); State v. Thornhill, 188 La. 762, 178 So. 343 (1938). This rule also prevails in other jurisdictions. 98 C.J.S. Witnesses § 387 at 160; 81 Am.Jur.2d, Witnesses, § 502 at 509; Annot., 47 A.L.R. 2d 1268, 1298. The defendant urges us to reconsider our holdings. Upon a review of the jurisprudence, we still find the following rationale from State v. Banks, supra, to be sound:

. . [W]e conclude that neither law nor justice permits a defendant to foist a spurious reputation upon a jury because the State is so limited in its cross-examination of the character witnesses that it may not inquire about knowledge of prior arrests. . . .”

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial court erred in permitting him to be charged as a multiple offender under LSA-R.S. 15:-529.1. He advances two arguments in support of his contention: (1) that the action of the trial court was violative of Article 4, § 5(E) of the 1974 Louisiana Constitution; and (2) that billing and sentencing a defendant as a multiple offender is cruel and unusual punishment and hence unconstitutional under both state and federal constitutions.

Article 4, § 5(E) of the Louisiana Constitution of 1974 provides that a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence. In 1971, the defendant was sentenced to five years imprisonment for each of two separate simple robbery convictions, to run consecutively. These convictions and sentences occurred prior to the adoption of the 1974 Constitution, the provisions of which are not retroactive. La.Const. Art. 14, § 26 (1974). In State v. Maduell, La., 326 So.2d 820 (1976), this Court specifically held Article 4, § 5(E) inapplicable to convictions and sentences occurring prior to the adoption of the 1974 Constitution.

This Court has rejected arguments that LSA-R.S. 15:529.1 is unconstitutional because it imposes cruel and unusual punishment. See, e. g., State v. Vale, 252 La. 1056, 215 So.2d 811, reversed on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1968).

This assignment of error is without merit.

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

      . We express no opinion at this time as to the effect of Article 4, § 5(E) of the Louisiana Constitution (1974) on multiple offender prosecutions based on convictions occurring after the effective date of the 1974 Constitution.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. James BULLOCK
    No. 57182.
    Supreme Court of Louisiana.
    March 29, 1976.

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

James A. Bullock was sentenced to serve forty-two years at hard labor as a second offender under the provisions of the Habitual Offender Law. La.R.S. 15:529.1. On appeal, he relies on six assignments of error for reversal of his sentence.

ASSIGNMENT OF ERROR NO. 1

A hearing for sentencing defendant as a second offender under the Habitual Offender Law (La.R.S. 15:529.1) was set for July 3, 1975. When the matter was called for hearing, defense counsel orally moved for a continuance until the following Monday in order to file additional pleadings. He asserted that he was unable to accomplish this prior to the present hearing as his secretary had been engaged since the day before in typing a memorandum which was due in federal court at four o’clock that day. The motion was denied by the trial judge.

A motion for continuance shall be by written motion alleging specifically the grounds upon which it is based, and when made by defendant, must be verified by his or his counsel’s affidavit. La.Code Crim.P. art. 707 (1966). When no written motion for continuance appears of record, the denial thereof will not be considered by this court. State v. Weathers, 304 So.2d 662 (La. 1974); State v. Hubbard, 279 So.2d 177 (La.1973). Furthermore, when the oral motion was denied, no objection was made. Failure to make timely objection acts as a waiver to have this court review the discretionary denial of such a request. La.Code Crim.P. art. 841, amend ed by Acts 1974, No. 297 § 1; State v. Marcell, 320 So.2d 19S (La.1975); State v. Craddock, 307 So.2d 342 (La.1975). Moreover, we find no abuse of discretion by the trial judge in denying the continuance under the circumstances here presented. La.Code Crim.P. art. 712 (1966). This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

During the hearing at which defendant was sentenced as a second offender, defense counsel made certain oral motions referring to a previous plea of prescription and a motion to quash the “double billing” procedure. These motions were reurged and overruled by the trial judge.

In reference to the plea of prescription, defendant argues that, while he was found guilty of murder and sentenced to death on February 2, 1967, the district attorney did not file an information accusing him of a previous felony conviction and asserting that he should be sentenced in conformity with R.S. 15:529.1 until after his conviction for manslaughter on retrial in 1974. He argues that this constitutes an unreasonable delay.

We do not agree. R.S. 15:529.1(D) provides in pertinent part:

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States; or any foreign government or country of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. . . .

(Emphasis added.) In State ex rel. Williams v. Henderson, 289 So.2d 74 (La. 1974), we held that R.S. 15:529.1(D) required that a proceeding to have defendant sentenced as a multiple offender must be completed before defendant serves the sentence which is to be enhanced. In State v. McQueen, 308 So.2d 752 (La.1975), we held that, while R.S. 15:529.1.(D) does not impose a specific prescriptive period in which the district attorney must act upon the receipt of the necessary information, the statute does require that the information be filed within a reasonable time after the necessary information is available to the appropriate district attorney; that the failure of the district attorney to file an information within a reasonable time after having the necessary information is not sanctioned by the statute and is in fact prohibited by article 874 of the Code of Criminal Procedure; and that an unreasonable delay in filing the information divests the jurisdiction to have the defendant sentenced as a multiple offender. We held under the facts of that case that the unexplained delay of three years eight months was unreasonable.

In view of the protracted history of this litigation as set forth in footnote 1 herein, we do not consider that the delay in filing the information accusing defendant of a previous conviction and asserting that he should be sentenced under R.S. 15:529.1 is unreasonable. Hence, defendant’s plea of prescription is without substance.

Next we consider defendant’s contention that the information should be quashed for the following reasons: (1) the state failed to allege an offense under a valid statute as the conviction by a court martial is not an offense under the laws of any other state or of the United States, or any foreign government or country or within this state; (2) the Habitual Offender Law is unconstitutional and specifically violates article I, section 10 of the Louisiana Constitution of 1921; (3) the “double billing” procedure constitutes double jeopardy; (4) the Habitual Offender Law violates the requirements of “fair notice,” “equal protection” and “due process.”

None of these contentions have merit. The first contention is answered by the explicit wording of R.S. 15:529.1 (A) which provides in pertinent part:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows: . .

(Emphasis added.) Defendant was convicted of the crime of murder in 1945 by a court martial while serving as a soldier in Italy during World War II. He was prosecuted under the Uniform Code of Military Justice, a law of the United States. 10 U.S.C.A. § 801, et seq. Murder, if committed in Louisiana, would be a felony (former R.S. 14:30). Consequently, defendant was properly sentenced as a second offender under R.S. 15:529.1.

In regard to the assertion that the Habitual Offender Law is unconstitutional, we recently stated in State v. Williams, 322 So.2d 177 (La.1975):

Habitual offender statutes have survived constitutional attack so often that their validity is no longer a matter of serious doubt. See McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901). The constitutionality of La.R.S. 15:529.1 has been upheld by this court several times. It is well established that the law does not make it a crime to be a multiple offender ; it merely prescribes an enhanced penalty for multiple offenders. As an enhancement-of-penalty provision, the statute does not punish a status, nor does it impose cruel and unusual punishment. See State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), rev’d on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Guidry, 169 La. 215, 124 So. 832 (1929). See also Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967).,

Accordingly, this contention is without substance.

A multiple offender indictment need only inform the accused that he was previously convicted of a felony within the time period set forth in the statute (La.R.S. 15:529.1). This satisfies the constitutional requirement that the accused shall be informed of the nature and cause of the accusation against him. State v. Rowell, 306 So.2d 671 (La.1975). Hence, there is no merit in defendant’s contention that the Habitual Offender Law violates article 1, section 10 of the Louisiana Constitution of 1921.

The third contention under the motion to quash is that the “double billing” procedure constitutes double jeopardy. We have previously held that R.S. 15:529.1 does not make it a crime to be a multiple offender; it merely prescribes an enhanced penalty be leveled against multiple offenders. Hence, it does not constitute double jeopardy. State v. Boatner, 304 So.2d 661 (La.1974); State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974).

The last contention is equally without merit. Defendant made no showing that he was not afforded adequate notice or that the statute violates the equal protection or due process clauses of the fourteenth amendment.

In sum, Assignments of Error Nos. 2 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 3

This assignment of error has been abandoned as it is neither briefed nor argued. State v. Blanton, 325 So.2d 586 (La. 1976); State v. Carlisle, 315 So.2d 675 (La.1975); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENT OF ERROR NO. 5

Defendant contends that his request for the required legal delay between conviction and sentence was improperly denied by the trial judge.

We find no merit m this contention. The Habitual Offender Law, R.S. 15:529.1, does not make it a crime to be a multiple offender. It provides for an enhanced penalty against the multiple offender for the basic crime for which he has been convicted. A multiple offender hearing relates only to the sentencing of a defendant. Thus, the three-day delay of article 873 of the Code of Criminal Procedure is the required delay between conviction of the basic crime and sentencing. State v. Davalie, 313 So.2d 587 (La.1975); State v. Rowell, 306 So.2d 668 (La.1975). Here, more than three days elapsed between conviction of the basic crime and sentencing. Hence, this assignment of error is without substance.

ASSIGNMENT OF ERROR NO. 6

Defendant asserts that the entire proceedings indicate a personal prejudice on the part of the trial judge against him.

A general allegation to this effect is made without specifically pointing out any particular facts to show prejudice or hostility on the part of the trial judge. We have carefully examined the record and find no such evidence. Nor do we find that defendant’s rights were infringed upon or that he was denied a fair hearing. On the contrary, a full hearing was held and defendant was not curtailed ■ in any way from presenting his defense. The allegation made is simply not supported by the record of the proceedings. Assignment of Error No. 6 is without merit.

DECREE

For the reasons assigned, the sentence is affirmed.

      F. James A. Bullock was convicted of murder and sentenced to death in 1967. No appeal was taken. In 1971, defendant’s writ of ha-beas corpus was granted and a new trial ordered. The matter came up for retrial in 1972 but the district judge, sua sponte, set aside the previous order granting a new trial and sentenced defendant to life imprisonment. We granted certiorari, 261 La. 818, 261 So.2d 227 (1972). Thereafter, we annulled the sentence and remanded for a new trial. 263 La. 946, 269 So.2d 824 (1972). Again the district judge, on his own motion, set aside the judgment granting a new trial and ordered the case taken to this court on a conventional appeal. We again ordered a new trial and remanded. 294 So.2d 218 (La. 1974). Following this remand, a retrial was held and Bullock was found guilty of manslaughter. Defendant was then billed as a a second offender under R..S. 15 :529.1 based on a 1945 conviction of murder by court martial, while serving as a soldier during World War II, and was sentenced to serve forty-two years. On appeal, we affirmed the conviction but, finding that the prior conviction had not been properly certified in accordance with R.S. 15:529.1(F), we annulled the sentence and remanded for resentencing in accordance with law. 311 So.2d 242 (La.1975). A hearing was held on this remand and Bullock was sentenced to serve forty-two years at hard labor with credit for time served from February 25, 1966. The appeal from the imposition of this sentence is the one presently before us.

      . See article I, section 13 of the Louisiana Constitution of 1974 for a similar provision.


text:
    STATE of Louisiana v. Melvin WHITE.
    No. 57179.
    Supreme Court of Louisiana.
    March 29, 1976.

      Michael S. Wolf, Frank W. Middleton, III, J. Clayton Johnson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Melvin White was charged and convicted of the attempted simple burglary of a small grocery store in Baton Rouge. Following the imposition of a four and one-half year sentence, he appeals to this Court, arguing that his two bills of exception require reversal of his conviction.

BILL OF EXCEPTION NO. 1.

Defendant White argues that the statements he made to the arresting officer immediately after his arrest were not given voluntarily and were not given after proper Miranda warnings, facts which made their admission into evidence error.

The statements in question were made to the arresting officer, John Dillon, in the following circumstances. In the early-morning hours of February 6, 1974, a silent alarm was activated at Ragusa’s Su-perette, and two Baton Rouge police officers were dispatched to the scene. They separated on arrival in order to circle the building from opposite directions. As one of the officers, Thomas Varnado, approached the back of the building, he saw several people attempting to enter a rear window from which an air conditioner had been removed. Because his access to the people was blocked by a wire fence, Officer Varnado was unable to capture them. But he did identify himself as a policeman and called for them to halt. The people fled. The other policeman, Officer Dillon, rounded the opposite rear corner of the building and pursued the fleeing men. After chasing the man closest to him (who later proved to be defendant White) for about three hundred yards, the officer overtook the man when he stumbled over some construction materials. A brief scuffle ensued. Officer Dillon hit the defendant about the legs with his shotgun and knocked him down; then he threw down the shotgun and the two men wrestled until Dillon subdued and handcuffed the defendant. Dillon testified that, after being given his Miranda warnings, defendant White told him that he had been offered a chance to make some easy money by pushing an air conditioner out of a window. Dillon testified that White admitted that the group had been trying to get into the window but had not been successful. White was arrested for attempted simple burglary.

Defendant White does not argue that the blows the officer gave him were more forceful than necessary to subdue him in order to make the arrest. Nor does defendant argue that the purpose of the blows (or beating) was to elicit a statement from him. Defendant does argue that the beating he received when he was apprehended rendered his later oral statement to the officer involuntary because even a beating justified under the circumstances has the effect of coercing a defendant’s confession.

It is well settled that, before a defendant’s inculpatory statement can be admitted into evidence, the state is required to prove beyond a reasonable doubt that the statement was given freely and voluntarily and that the Miranda warnings had been given. La.R.S. 15:451; State v. Peters, 315 So.2d 678 (La.1975); State v. Sims, 310 So.2d 587 (La.1975); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969)." Once a trial judge has determined that the state has met its burden of proof, his decision is entitled to great weight on review. State v. Hall, 257 La. 253, 242 So.2d 239 (1970) and cases cited therein.

There is evidence in this record to support the trial judge’s finding. Officer Dillon testified that after defendant had been subdued and handcuffed he was led to a street lamp where Dillon read him his Miranda rights. Dillon testified that the defendant was asked whether he understood his rights and he signified that he did. Dillon questioned defendant who then made the disputed statements. Dillon testified that he had not threatened defendant with any violence nor made him any promises to elicit his statements. Defendant White, on the other hand, testified on the predicate that he was not read his rights until he arrived at the police station and that he would not have said anything to Dillon if he had not been struck. However, White did not say that the beating exceeded that necessary to subdue him, or that he was in fear or pain after the beating (although he did say that he had a headache), or that he thought that the officer hit him in order to elicit any statements from him.

We have analyzed a similar record wherein we found that the state had carried its burden of proving that the statement was made voluntarily and after proper Miranda warnings in State v. Kemp, 251 La. 592, 205 So.2d 411 (1968). In that case defendant had been captured after a warning shot had been fired some fifty feet from him. After he was captured, defendant made an inculpatory statement which was admitted into evidence. The trial court’s decision was upheld on review because this Court was persuaded that there was no showing that the statement, which defendant denied he even made, was involuntary.

Article I, § 16 of the Louisiana Constitution provides that “No person shall be compelled to give evidence against himself.” This provision suggests that no form of compulsion, whether or not it was intended to coerce a confession, will be tolerated. But there must still be an element of compulsion in order to render a statement involuntary. We do not find that the force used here compelled defendant’s statement, rendering it involuntary.

The only other testimony on the subject of the voluntariness of the statements was defendant’s testimony at the motion to suppress that he was “high” on alcohol at the time he made the statements. But he further testified that he was not drunk and that he understood what was happening. To render a confession inadmissible, a defendant’s intoxication must be of such a nature as to negate his comprehension and render him not conscious of what he is saying. State v. Green, 282 So.2d 461 (La. 1973). By defendant’s own admission, he was sober enough to make a voluntary confession.

The fact that an officer had to use force to subdue an arrestee is certainly an element which the judge should consider on the question of voluntariness. Other evidence, however, may well convince the judge beyond a reasonable doubt that the statement nonetheless was voluntary. In light of the fact that the force used to subdue the defendant was neither excessive nor designed to compel a confession, we hold that the trial judge’s decision was not erroneous.

BILL OF EXCEPTION NO. 2.

Defendant argues that the trial judge erred when he overruled defendant’s motion for a mistrial. The ground for defendant’s motion was that a portion of the judge’s charge to the jury constituted an improper comment on the evidence. The trial judge had made this statement to the jury:

“Now, I will also instruct you that flight, if established by the evidence, is a circumstance which may tend to prove guilt in some cases and which may be considered by the jury together with all the other circumstances established by the evidence. You may give it whatever weight, if any, that appears to be proper in considering it together with all of the other evidence and circumstances in the case.”

Defendant argues that when the judge stated that flight “is a circumstance which may tend to prove guilt” he was recapitulating evidence to the prejudice of defendant in violation of C.Cr.P. art. 806, and that declaration of a mistrial was therefore required under C.Cr.P. art. 772.

Article 806 of the Code of Criminal Procedure provides that:

“The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

If the judge’s instructions had included a comment on the evidence, then a mistrial would certainly be required by Article 806. State v. Brevelle, La., 270 So.2d 852 (1972) and cases cited therein. If the judge’s charge recapitulates the evidence, or repeats to the jury the testimony of any witness, or offers an opinion as to what facts have been proved or disproved, then the charge has been considered error, mandating a mistrial. See State v. Green, 231 La. 1058, 93 So.2d 657 (1957); State v. Watson, 159 La. 779, 106 So. 302 (1925); State v. Davis, 140 La. 925, 74 So. 201 (1917); State v. Markham, 15 La.Ann. 498 (1860). Here, however, the trial judge merely instructed the jury on the applicable law; those instructions, although pertinent to the case at hand, did not focus on the particular facts of the case. The judge did not recapitulate the evidence, nor repeat the testimony of any witness, nor offer any opinion as to what facts, if any, had been proved. Furthermore, the charge was a correct statement of the law. State v. Lane, 292 So.2d 711 (La. 1974).

The trial judge’s instructions on the subject of flight did not constitute a comment on the evidence in violation of C.Cr.P. art. 806.

Accordingly, the conviction and sentence of Melvin White for the crime of attempted simple burglary is affirmed.

MARCUS, J., concurs.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Alfred JUDSON.
    No. 57174.
    Supreme Court of Louisiana.
    March 29, 1976.
    Jack T. Marionneaux, Asst. Public Defender, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Cashio, Dist. Atty., Houston C. Gascon, III, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Alfred Judson, was originally charged by bill of information with the crime of simple robbery. Subsequently the district attorney dismissed the robbery charge and instituted the charge of theft by a separate bill of information, which was based on the same facts that had given rise to the robbery charge. The defendant was convicted of theft in a jury trial on October 20, 1975, and subsequently sentenced to ten years imprisonment. On appeal he relies on one assignment of error.

The defendant filed a pre-trial motion to suppress a line-up identification made by one of the eyewitnesses to the crime. To the trial judge’s ruling denying the motion to suppress, the defendant assigns this error.

On the morning of October 4, 1974 two rings were stolen from Ocmand’s Quality Jewelry Store. Mr. Freddie Pitre and Miss Angela Bower, employees of the store who were present at the time of the theft of the rings, were taken to the Iberville Parish sheriff’s office to view the local “mug book” to see if either could identify the perpetrators of the theft. No identification was made at this time.

Subsequently Mr. Pitre and Miss Bower were shown some eight to twelve photographs obtained from the State Police. From this group of pictures, Mr. Pitre positively identified the defendant as one of the perpetrators of the crime. Based on this identification the defendant was arrested.

On or about February 6, 1975, or some four months after the crime, a line-up was conducted at the Iberville Parish sheriff’s office in Plaquemine. Mr. Pitre, who had previously made the photographic identification of the defendant, once again positively identified him as one of the participants in the crime.

On April 4, 1975 a preliminary hearing and a hearing on a motion to suppress was held. At this hearing it was brought out that Mr. Pitre had once been shown a family album which contained pictures of the defendant along with his relatives and friends. Mr. Pitre at this hearing first testified that he was not sure when the album had been dispayed to him. However, when pressed, he finally stated that he “guessed” it had been shown to him before the line-up had taken place.

On October 17, 1975 another preliminary hearing was held in this case. At this hearing Mr. Pitre testified that he was sure that the album had not been shown to him until after the line-up had taken place. He testified that he must have been confused at the first hearing when he stated he had been shown the album before the line-up took place.

At the trial of the case Mr. Pitre again positively identified the defendant as one of those participating in the theft of the rings from the jewelry store.

It is the defendant’s contention that the family album was seen by Mr. Pitre before the line-up, and that his seeing the family album immediately prior to the line-up tainted the line-up identification and subsequent in-court identification. For the reasons stated below, we cannot agree.

The burden of proof rests on the defendant to show that the line-up identification was impermissibly tainted. C.Cr.P. 703. In the instant case, no such showing has been made. The defendant was represented by counsel at the line-up. His counsel was allowed to choose the other participants and assign their respective positions. The only basis for the allegation that the line-up identification was tainted is the possibility that Mr. Pitre viewed pictures of the defendant in a family album before the lineup had taken place. However, this fact was not proven.

Admittedly, at the first hearing, Mr. Pitre, in somewhat confused testimony, “guessed” that he had been shown the album before viewing the line-up. However, at the second hearing he positively stated that he had not been shown the family pictures until after the line-up had been conducted. This testimony is corroborated by that of Officer Stassi who testified that he did not, nor to his knowledge did anyone else, display the album until after the lineup had been conducted. Under such circumstances, we cannot say that the line-up identification was tainted. See State v. Johnson, 306 So.2d 724 (La.1975); State v. Nelson, 306 So.2d 745 (La.1975).

Even if we assume arguendo that the line-up identification was tainted by Pitre’s viewing the family album before the line-up had taken place, it is settled that the witness’ subsequent in-court identification does not violate the defendant’s due process rights where it has a source independent of the out-of-court identification. State v. Bland, 310 So.2d 622 (La. 1975). In State v. Newman, 283 So.2d 756 (La. 1973), we stated that a determination of whether the witness’ in-court identification was based on an independent source involves three factors: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during and after the offense; and (3) the circumstances in which the observation was made, including illumination at the scene, the physical capacities of the witness and the emotional state of the witness at the time of the observation.

In the instant case, the perpetrators had been in the store the day before the theft, in full view of Mr. Pitre. They made a purchase that day. They returned the next morning, and were the only two customers in the store at the time of the theft. Having seen them make a purchase the day before, there was no reason for Mr. Pitre to be anything but relaxed as he observed them the morning of the crime. The store itself is well lighted. It is clear that, given these facts, the in-court identification had a source independent of any out-of-court identification, tainted or otherwise.

Accordingly, the conviction and sentence are affirmed.


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

text:
    James L. PRADOS v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 56255.
    Supreme Court of Louisiana.

      Nov. 3, 1975.

    On Rehearing March 29, 1976.

      Edward B. Dubuisson, Dubuisson, Brink-haus, Guglielmo & Dauzat, Opelousas, for defendant-applicant.
    Felix A. Dejean, III, Opelousas, for plaintiff-respondent.
   BOLIN, Justice.

The Court of Appeal affirmed a judgment of the trial court holding plaintiff, as owner of realty, could recover against defendant for the cost of removing improvements from the property under a provision of a predial lease entered into between plaintiff’s ancestors in title and defendant. 309 So.2d 386 (La.App. 3rd Cir. 1975). For reasons hereinafter stated, we affirm.

The basic question presented is: can plaintiff enforce a provision contained in leases with plaintiff’s ancestors in title, which provision obligated Bell to remove improvements on property now owned by plaintiff ?

In September, 1946, Mrs. Rose Prados leased a lot of land to South Central Bell Telephone Company (then Southern Bell Telephone & Telegraph Company, Inc.) for five years, with an option to renew for another five years. The lease provided defendant could erect a building and would have the “privilege of removing this building any time they desire to do so.” Another similar lease was executed by the same parties in 1954, providing that its terms were to cancel and supersede the 1946 lease. The 1954 contract also included the following:

“ * * * It is understood and agreed that lessee will have the privilege of erecting buildings, sheds, fences, etc., and shall also have the privilege of removing same at the completion of this lease or renewals thereof. * * * ” (Emphasis supplied.)

Sometime later, James H. Prados acquired the property in question, and on August 13, 1969, he contracted to lease the property to Bell for a term of two years with two options to renew the lease for successive one-year periods. The instrument contained substantially the same stipulations regarding construction and removal of improvements as were contained in the 1954 contract.

All of the above contracts were recorded in the conveyance records. The renewal options in the 1969 contract were exercised by Bell, and the parties agreed to terminate the lease on April 30, 1973.

Several months thereafter, on July 12, 1973, the widow of James H. Prados sold the property to James L. Prados. After'acquiring title to the property James L. demanded that Bell remove the concrete structures, shell and other improvements which it had placed on the property during its terms as lessee. When Bell refused, James L. Prados had the improvements removed and the property restored to its condition before the Bell leases began. The restoration cost plaintiff $5,338.20, and he instituted this suit against Bell to recover that amount.

It is not readily apparent from the language of the 1954 and 1969 leases why defendant was obligated to remove any improvements it placed on the property. However, it becomes clear by analyzing the terms of the contracts in light of provisions of our Civil Code that defendant was so obligated. La.Civil Code articles 2719 and 2720 establish the obligation of the lessee to restore leased property to its original condition:

“If an inventory has been made of the premises in which the situation, at the time of the lease, has been stated, it shall be the duty of the lessee to deliver back everything in the same state in which it was when taken possession of by him, making, however, the necessary allowance for wear and tear and for unavoidable accidents.” La.C.C. art. 2719.
“If no inventory has been made, the lessee is presumed to have received the thing in good order, and he must return it in the same state, with the exceptions contained in the preceding article.” La. C.C. art. 2720.

Article 2726 bestows upon the lessee the privilege of removing the improvements placed upon the premises, but also provides that if the improvements are made with lime and cement, the lessor has the option of retaining them upon paying a fair price.

The contract language in the present case allowed Bell, the lessee, the privilege of removing all improvements made on the property. We interpret that provision as a reservation by Bell of.the right to remove all the improvements (regardless of whether they were made with lime and cement) and a forfeiture by the lessor of his option to retain the additions upon paying a fair price for them. We also find this contractual stipulation did not modify the obligation imposed by the Code upon the lessee to restore the premises to their original condition by removing the improvements at the end of the lease.

Bell argues that the lessor acquiesced in the construction of the improvements upon the premises and he thereby waived his statutory right to demand that the leased premises be restored at the termination of the lease to their prior condition. Bell maintains that the lease provision affording the lessee the right to construct certain improvements represents a forfeiture by the lessor of this right to demand restoration.

We find no merit in defendant’s contention. Waiver of the right to have the premises restored to their original condition cannot be inferred from an agreement allowing construction of improvements during the term of the lease. To the contrary, such a stipulation merely prevents the lessor from asserting during the term of the lease that the lessee has breached his contract by constructing unauthorized additions on the property. The case cited by defendant in support of his position on this point is inapposite. In Riggs v. Lawton, 231 La. 1019, 93 So.2d 543 (1957), this Court inferred from all the circumstances that the lessor had agreed to allow the lessee at the termination of the lease to leave the constructions he had placed on the property. We find no circumstances in this case indicating such a waiver by the lessor. We agree with the conclusion reached under similar circumstances in Dietz v. Superior Oil Co., 252 So.2d 198 (La.App. 3rd Cir. 1971):

“ * * * If the parties had intended that the lessee should be allowed to leave or abandon any improvements or additions at the time the term or extended term of the lease terminated, this could have been specifically provided in the contract.” 252 So.2d at 200.

Having determined Bell was obligated under its lease with plaintiff’s ancestors in title to remove the improvements it had placed on the leased property, we must determine whether plaintiff could assert this right to compel removal. Bell argues that the contract of lease creates only personal rights and obligations which may be asserted only by the original lessor. Plaintiff, on the other hand, maintains that a recorded lease creates real rights and" obligations which follow the property. Therefore, both parties ask us to classify rights and obligations under a lease contract as real or personal, and then to conclude therefrom whether a landowner may require that a lessee of his ancestor in title remove improvements placed on the property during the lease.

The Louisiana concept of a real right is not entirely clear, and it seems to differ materially from the French and the Roman. There is- considerable confusion among the French commentators whether a predial lease creates real or personal rights. The Louisiana jurisprudence does not always conform to our legislation on the subject, and the legislation itself is not entirely consistent. It appears that the rights and obligations created by the contract of lease are hybrids, and whether those interests should be treated as personal or real will depend on what rights are being asserted and what obligations are sought to be enforced.

Thus, we feel that to solve the issue presented by this case, rather than resorting to any broad determination of the nature of the interests flowing from a lease, we must examine the specific directives of our Civil Code on the effect of a sale of property upon the rights and obligations of the land’s lessor and lessee.

“If the lessor sells the thing leased, the purchaser can not turn out the tenant before his lease has expired, unless the contrary has been stipulated in the contract.” La.C.C. art. 2733.
“Not only servitudes, but leases and all other rights, which the owner had imposed on his land before the alienation of the soil, form real obligations which accompany it in the hands of the person who acquires it, although he have made no stipulation on the subject, or they be not • mentioned in the act of transfer. The purchaser may, if the circumstances permit it, have relief against the seller for concealment of such charges; but the law establishes the rule that no one can transfer a greater right than he himself has, except where the neglect of some formality required by law has subjected the owner of the real incumbrance to a loss of his right, in favor of a creditor or bona fide purchaser.” La.C.C. art. 2015. (Emphasis supplied.)
“Heritable obligations and stipulations give to and impose upon heirs, assigns, and other representatives, the same duties and rights that the original parties had and were liable to, except that beneficiary heirs can only be liable to the amount of the succession.” La.C.C. art. 2008.
“All rights, acquired by a heritable obligation, may be assigned; this assignment may be made, expressly by contract granting such right, or impliedly by the conveyance of the property to which they are attached.” La.C.C. art. 2009.
“Not only the obligation, but the right resulting from a contract relative to immovable property, passes with the property. Thus the right of servitude in favor of immovable property, passes with it, and thus also the heir or other acquirer will have the right to enforce a contract made for the improvement of the property by the person from whom he acquired it.” La.C.C. art. 2011, (Emphasis supplied.)

As applied to the instant case we find these provisions mandate that the duties and privileges imposed by the recorded contract of lease bind the owner of the property and the lessee after the sale of the property to a third party. Thus, every unexecuted provision in the lease between James H. Prados and Bell was binding upon Bell and James L. Prados, after the latter became owner of the property.

Moreover, the obligation sought to be enforced in this suit is not merely one which arises from the will of the parties to the lease. The obligation to restore the premises is imposed by positive provisions of our Civil Code from which the parties have not derogated by the terms of their contract. Thus, defendant Bell was obligated to remove the improvements it had constructed on the property. Failing to remove these improvements, it owes plaintiff for his costs in restoring the land to its prior condition.

For the reasons assigned, the judgments of the trial court and the court of appeal are affirmed. South Central Bell Telephone Company is assessed with costs of this Court.

CALOGERO, J., concurs.

DIXON, J., dissents.

ON REHEARING

SANDERS, Chief Justice.

We granted a rehearing in this case because of defendant’s persuasive contentions and the importance of the decision to the property law of this State.

The facts may be briefly summarized. Mrs. Rose Prados leased a lot of land in Opelousas to South Central Bell Telephone Company. In 1969, James H. Prados acquired ownership of the property and executed a new lease in favor of the same lessee. The lease contracts were duly recorded. Both leases provided:

“It is understood and agreed that lessee will have the privilege of erecting buildings, sheds, fences, etc., and shall also have the privilege of removing same at the completion of this lease or renewals thereof.”

The lease terminated on April 30, 1973. Several months later, on July 12, 1973, Mrs. Ester Binford Prados, the widow of James H. Prados, sold the property to James L. Prados.

After acquiring the property, James L. Prados demanded that Bell remove “the concrete structures, shell and other debris” placed on the property during the term of the lease. When Bell refused, Prados had the property cleared. He then brought this suit against Bell for damages, representing the cost of clearing the lot.

The question presented is one of law: can the present owner recover damages based upon a breach of the former lessee’s obligation to restore the property at the termination of the lease in the same state as that in which the lessee received it ?

Plaintiff contends that the lessor’s right to require the premises to be cleared attached to the property and passed to him by virtue of the sale. He relies principally upon Louisiana Civil Code Articles 2011, 2015, and 2733.

Defendant asserts that the lease right to have the property returned in the same state is a personal right, accruing to the lessor upon the termination of the lease; that plaintiff took the property as he found it at the time of the conveyance; and that the personal right to damages was not assigned in the sale.

In recent years, we have consistently classified predial leases as involving personal rights, rather than real rights. See Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964); Harwood Oil and Mining Co. v. Black, 240 La. 641, 124 So.2d 764 (1960) ; A. Yiannopoulos, Louisiana Civil Law Treatise — Property, § 95, pp. 275-278 (1967). When, however, the lessor sells property during the term of a recorded lease, the purchaser in the absence of a contrary stipulation is bound by the obligations of the lessor. LSA-C.C. Arts. 2015, 2733; Spence v. Lucas, 138 La. 763, 70 So. 796 (1915); Walker v. Van Winkler, 8 Mart. (N.S.) 560 (1830). In the absence of a contrary stipulation, the new owner is likewise entitled to the rent accruing subsequent to his acquisition, LSA-C.C. Arts. 1902, 2461, 2490; Carmouche v. Jung, 157 La. 441, 102 So. 518 (1924); Lesseigne v. Cedar Grove Realty Co., 150 La. 641, 91 So. 136 (1921) ; 29 La.L.Rev. 107.

The present lease had expired before plaintiff’s acquisition’of the property. The seller conveyed the property free of any lease. Hence, we now discern that on original hearing we erroneously applied Louisiana Civil Code Articles 2733, 2015, and 2011, dealing with the effect of a conveyance upon an existing lease.

In our opinion, the question of liability must be resolved in the light of the rules governing the assignment and subrogation of rights. The controlling provisions of the Louisiana Civil Code are Articles 2009, 2461, and 2490. These articles provide:

Article 2009:

“All rights, acquired by a heritable' obligation, may be assigned [and transferred] ; this assignment may be made, expressly by contract granting such right, or impliedly by the conveyance of the property to which they are attached.”
Article 2461:
“The sale of a thing includes that of its accessories, and of whatever has been destined for its constant use, unless there be a reservation to the contrary.”
Article 2490:
“The obligation of delivering the thing includes the accessories and dependencies, without which it would be of no value or service, and likewise everything that has been designed to its perpetual use.”

The act of sale stipulates :

“ . . . she [Mrs. Ester Binford Pra-dos] does by these presents, grant, bargain, sell, convey, transfer, assign and set over with full guarantee against all mortgages, liens, claims, evictions, or other encumbrances or alienations whatsoever, and with subrogations to all her rights and actions of wárranty against all previous owners, and with full guarantee of title, unto JAMES L. PRA-DOS ...”

The conveyance arid subrogation clauses make no reference to the expired lease, nor to the right of the seller to a restoration of the property to its original state, nor to the right of damages. The subrogation clause is directed to the rights and actions of warranty against previous owners. Hence, we readily conclude that there was no express assignment within the meaning of Article 2009. If a cession of the contested right occurred, it must be found in the accessorial inclusion, or tacit assignment, provided in the articles.

Article 2461 is a restatement of Article 2490. Article 2009 sets forth the methods of assigning heritable rights, one of which is an implied assignment from the conveyance of the property to which the rights are attached.

Article 2490 provides that the conveyance of land includes the “accessories and dependencies.” This article derives from Article 1615 of the French Civil Code of 1804. In the sale of immovable property, accessories include immovables by destination and predial servitudes in favor of the property conveyed. See Bagley v. Rose Hill Sugar Co., 111 La. 249, 35 So. 539 (1903); Smith v. Bell, 224 La. 1, 68 So.2d 737 (1953); LaFleur v. Foret, La. App., 213 So.2d 141 (1968); T. Hue, Commentaire Du Code Civil, Vol. 10, p. 121 (1897). Under the article, however, accessories do not include personal rights of the seller. Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686 (1941); Clark v. Warner & Co., 6 La.Ann. 408 (1851); M. Planiol et G. Ripert, Traite Pratique De Driot Civil Frangais, Vol. 10, Sect. 87, pp. 89-90 (2d ed. 1956).

In 10 Traite Pratique De Droit Civil Frangais, supra, Sect. 87 at p. 89, Planiol and Ripert state:

“Personal rights belonging to the seller can never be considered as accessories of the immovable sold.”

Thus, even when property is conveyed during the term of an existing lease, the purchaser cannot recover from the lessee rent that had accrued prior to the sale. Carmouche v. Jung, supra; Lesseigne v. Cedar Grove Realty Co., supra; Matthews v. Alsworth, 45 La.Ann. 465, 12 So. 518 (1893); 29 La.L.Rev. 107. Likewise, a purchaser cannot recover from a third party for damage to the property incurred prior to the sale. Gumbel v. New Orleans Terminal Co., supra; Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562 (1910); McCutchen v. Texas & P. Ry. Co., 118 La. 436, 43 So. 42 (1907); Bradford v. Richard, et al., 46 La.Ann. 1530, 16 So. 487 (1894); Clark v. Warner & Co., supra.

Even during the term of a lease, a purchaser of immovable property acquires no right to recover from the lessee for property damage sustained before the sale. Matthews v. Alsworth, supra; Aubry & Rau, Droit Civil Frangais, An English Translation by the Louisiana State Law Institute, Vol. 2, § 176, p. 76 (7th ed. 1961).

In Matthews v. Alsworth, supra, the lessor sold the property during the term of the lease. The act of sale contained the following assignment: “Said lease and all the aforesaid conveyors’ rights in, to, or under the same are transferred hereby . . . to the conveyee herein.”

In holding that the purchaser could not recover from the lessee property damages incurred prior to the sale, this Court stated:

“Ordinarily the sale of a thing will pass all such things as are directly incident to it, and necessary to its enjoyment. Civil Code, art. 2461. The lessee is liable on the covenants of his lease, and to these, unquestionably, plaintiff is sub-rogated from the date of his purchase. By the use of the words ‘right in, to, or under the lease,’ the plaintiff did not become an assignee of damages of date prior to the sale .... It was not an accessory right, which passed like a right of servitude, for instance, without description of, or reference to, the claims. The property transferred is described. We cannot presume that there were additional rights in the nature of damages, the deed being silent as to damages.”

The general principle, we think, is that a buyer is presumed to know the overt condition of the property and to take that condition into account in agreeing to the sales price. See LSA-C.C. Art. 2521; Aubry & Rau, Droit Civil Frangais, supra, p. 76 (f.n. 6).

The rationale of the foregoing decisions applies more strongly to the present case. Here, as we have noted, the conveyance was made after the termination of the lease. The property passed to the buyer unencumbered. The right to damages accrued to the lessor prior to the sale. It was a personal right, as distinguished from a real right. Under no sound theory can it be considered as attached to or accessory to the immovable property. Hence, in the conveyance, the plaintiff received no assignment of the right.

We hold that the present owner has no right to recover damages against the former lessee.

For the reasons assigned, the judgment of the Court of Appeal is reversed and plaintiff’s suit is dismissed at his costs.

SUMMERS, J., dissents and adheres to the Court’s original opinion and joins the dissent of TATE, J.

TATE, J., dissents and assigns reasons.

TATE, Justice

(dissenting).

The writer respectfully dissents from the scholarly majority opinion. The writer adheres to the equally scholarly opinion rendered by a majority on original hearing. In my opinion, as we originally held, the former tenant’s obligation to remove the improvements is a real obligation enforceable by the present owner of the premises.

To recapitulate briefly, the civil code provides that the lessee (South Central Bell) is under an obligation to remove improvements placed on the premises during the lease period, but the lessor (Mrs. Prados) has the option to retain them upon paying the lessee a fair price. Article 2726. By the recorded lease, the tenant was given the privilege of removing the improvements at the termination of the lease (thus contractually depriving the landlord of her code option of retaining the improvements upon paying a price therefor).

After termination of the lease, the property was sold. The purchaser (the plaintiff) from the landlord demanded that the tenant (South Central Bell) remove the concrete structures on the premises. This suit is to enforce the tenant’s obligation to remove the “improvements” (which, in actual fact, detracted from the value of the premises).

The majority on rehearing holds that the obligation was a personal obligation which was enforceable only by the original landlord, not by the landlord’s successor in title. For the reasons assigned by our original opinion, I adhere to our original conclusion that the present is a real obligation enforceable by the current owner of the property. (An ordinary lease contract includes both real and personal rights and obligations, as we held on originally; I do not read the opinion on rehearing as necessarily disputing this well-settled principle.)

The correctness of our original conclusion, it seems to me, is more readily seen if we consider two other postures in which enforcement of this same right-obligation to remove or retain the improvements made by the tenant might have arisen:

1) If the tenant South Central Bell had sought to force the purchaser (the plaintiff Prados) to accord it its real right under the civil code and the lease to remove the improvements, it seems certain to me that Prados could not have resisted South Central Bell’s demand by urging that the obligation was personal to his vendor (the original lessor) and only enforceable against her. The present owner of the land would have been obligated by the code article, in view of the recorded lease, to permit the former tenant to remove its improvements; or

2) If in fact the lessor (Mrs. Prados) instead of her purchaser (her son, the plaintiff) had sought to enforce the obligation against the tenant for it to remove its improvements, then it seems to me the courts would have held that the former owner had no interest in restoring the premises to their condition when originally leased. Implicit in such a holding is the recognition that only the current owner of the land has the right to enforce the obligation.

In the absence of any evidence that any owner of the land intended to release South Central Bell from its admitted obligation to remove the “improvements” from the land, I am unable to see how this obligation was extinguished, nor why the present owner should not have the right to enforce it.

Such unextinguished obligation is owed to the owner of the land by reason of the code article, not to anyone else by reason of any obligation of a personal nature arising out of a contract.

I therefore respectfully dissent, believing that the trial court, the court of appeal, and our original majority were all correct in their holding that the real obligation here in question may be enforced by the present owner of the land.

      . Comment, 21 La.L.Rev. 462 (1961) ; Reagan v. Murphy, 235 La. 529, 105 So.2d 210 (1958) ; 2 A. Yiannopoulos, Civil Law Property, § 84 (1966).

      . 1 M. Planiol, Traite Elementaire de Droit Civil, § 2165 (La.St.L.Inst. transi. 1959) ; Cass., 6 March 1861, D. 61.1.418, S. 61.1.713; 2 A. Yiannopoulos, Civil Law Property, § 87 (1966) ; 1 Troplong, De 1’dchange et du louage 60 (1859).

      . Comment, 21 La.L.Rev. 462 (1961). Compare La.C.C. art. 2015, 2010, and 2011 to Reagan v. Murphy, 235 La. 529, 105 So.2d 210 (1958) ; Gulf Refining Co. of La. v. Glas-sell, 186 La. 190, 171 So. 846 (1936) ; Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369 (1949) ; Weber v. H. G.. Hill Stores, Inc., 207 La. 500, 21 So.2d 510 (1945).

      . Compare La.C.C. arts. 2015, 2010, 2011 to La.O.C.P. art. 3656.

      . Real rights follow property and can be asserted against anyone. In Louisiana, a recorded lease is effective against a third party purchaser, but a lessee cannot bring a pos-sessory or petitory action to enforce his right to possession. See 2 A. Yiannopoulos, Civil Law Property, § 84 (1966).

      . “Des droits personnels appartenant au vendeur ne peuvent jamais étre considérés comme des accessoires de l’immeuble vendu.”


text:
    Willie MITCHELL v. The EQUITABLE EQUIPMENT COMPANY and Continental Assurance Company.
    No. 57081.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Willie Mitchell, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 319 So.2d 552.

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


text:
    Gilbert AUSTIN v. Bobby DUPRE.
    No. 57719.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Gilbert Austin, applying for writ of certiorari.

Writ denied. On the facts found, the result of the Court of Appeal opinion is correct.


text:
    Charles COLBERT v. MIKE BAKER BRICK COMPANY OF NEW IBERIA, INC.
    No. 57701.
    Supreme Court of Louisiana.
    March 26, 1976.
   In re: Charles Colbert, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 326 So.2d 900.

Application not considered. The judgment of the court of appeal became execu-tory due to the failure to apply for rehearing therein. La.C.Civ.P. Art. 2167. The application will therefore not be considered. La.R.S. 13:4450; Rules of Supreme Court (1973), Rule 10, Section 4(b).


text:
    STATE of Louisiana v. Donald LOVETT.
    No. 57751.
    Supreme Court of Louisiana.
    March 30, 1976.
   In re: Donald Lovett applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Granted. The trial court’s denial of the defense motion is set aside. The state is ordered to make the witnesses, John H. Jensen, Jr. and Kenneth (Pee Wee) Hooper, available to the defense for interview, under court supervision or show cause to the contrary in this court, on or before Monday, April 12, 1976. In the interim, other proceedings in this matter are stayed.


text:
    Charles WEEDON v. Hon. Thomas C. WICKER, Jr., Judge, Section “H” 24th Judicial District Court, Parish of Jefferson.
    No. 57757.
    Supreme Court of Louisiana.
    March 31, 1976.
   In re: Charles Weedon applying for Writs of Mandamus and Review.

Application denied. There is no showing of abuse or error in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Scott HILL v. Herman B. SCHOENBERGER, in his capacity as Sheriff of the Parish of Plaquemines.
    No. 57766.
    Supreme Court of Louisiana.
    March 31, 1976.
   In re: Scott Hill applying for Writ of Habeas Corpus.

Writ denied. The petitioner is not entitled to relief on the ground urged.


text:
    STATE of Louisiana v. Ronnie JONES et al.
    No. 57831.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Harry F. Connick, District Attorney, Parish of Orleans applying for Writ of Certiorari, Mandamus and Prohibition.

Writ denied. The showing is insufficient to warrant our concluding the trial judge erred.


text:
    PEOPLES FURNITURE AND GIFT v. CARSON HICKS/FRIEDRICHS REFRIGERATION, INC.
    No. 57722.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Friedrichs Refrigeration, Inc., applying for Certiorari, or writ of review, to the Court, of Appeal, Third Circuit, Parish of Natchitoches. 326 So.2d 919.

Granted. Applicant is entitled to rear-gument in the Court of Appeal under the provisions of Article S, Section 8 .of the Constitution of 1974. The Court of Appeal’s denial of rehearing is vacated and the matter is remanded to the Court of Appeal for reargument before five judges.


text:
    STATE of Louisiana ex rel. Robert Emmett HUEN v. Hon. Baron B. BOURG, Judge, 32nd Judicial District Court, Parish of Terrebonne Courthouse Houma, Louisiana
    No. 57608.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Robert Emmett Huen applying for Writ of Mandamus and Habeas Corpus.

Writ denied. Hearing has been set by trial judge for April 19, 1976. The matter is moot.


text:
    STATE of Louisiana v. Stineo SMITH.
    No. 57691.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Stineo Smith, applying for writ of review.

Application denied. The arguable error was waived by failure to timely object.


text:
    Covey W. INGRAM v. Joe FREEMAN et al.
    No. 57696.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: J. L. Jones and Pearl Freeman Jones applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 326 So.2d 565. ■

Writ denied. On the facts found, we find no error of law.


text:
    STATE of Louisiana ex rel. Charles M. DUPREE v. John B. RABALAIS, Record Office, Louisiana State Penitentiary.
    No. 57634.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Charles M. Dupree applying for Writ of Mandamus and Habeas Corpus.

Writ denied. Despite the clerical error in the minutes of court, relator is not entitled to the relief sought.


text:
    STATE of Louisiana ex rel. Luden Charles McGEE v. 20TH JUDICIAL DISTRICT, JUDGE, PARISH OF EAST FELICIANA.
    No. 57699.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Lucien Charles McGee, applying for writ of mandamus.

Writ denied. In view of the rule to show cause issued by the trial court on March 23, 1976 and its ruling on March 31, the application for mandamus is moot.


text:
    STATE of Louisiana ex rel. Jimmie McCAULEY v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57727.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Jimmie McCauley applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana ex rel. Robert BLANTON, III v. C. Paul PHELPS, acting Warden, Louisiana State Penitentiary, Angola, Louisiana.
    No. 57700.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Robert Blanton, III applying for Writ of Habeas Corpus.

Writ denied. There is no error in the ruling of the trial judge.


text:
    Clarence M. KELLY v. BLOUNT BROTHERS CORP. et al.
    No. 57733.
    Supreme Court of Louisiana.
    April 7, 1976
   In re: Olin Corp. and Insurance Company of North America, applying for Certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 326 So.2d 906.

Application not considered. No application made to the Court of Appeal for rehearing as required by law. Moreover, judgment not final as case remanded to trial court.


text:
    Covey W. INGRAM v. Joe FREEMAN et al.
    No. 57799.
    Supreme Court of Louisiana
    April 7, 1976.
   In re: Covey W. Ingram applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchi-toches. 326 So.2d 565.

Writ denied. On the facts found, we find no error of law.


text:
    Covey W. INGRAM v. Joe FREEMAN et al.
    No. 57745.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Joe Freeman applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchi-toches. 326 So.2d 565.

Writ denied. On the facts found, we find no error of law.


text:
    STATE of Louisiana v. Vernie Ray MILLER.
    No. 57752.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: Vernie Ray Miller applying for Writs of Review.

Writ denied. In absence of an indictment, defendant is entitled to a hearing to determine whether he is entitled to bail. La.Code Crim.P. art. 313(1). Bail hearing is ordered, otherwise the application is denied.


text:
    STATE of Louisiana v. James Dexter PURNELL.
    No. 57740.
    Supreme Court of Louisiana.
    April 7, 1976.
   In re: James Dexter Purnell applying for Writs of Certiorari, Mandamus and Prohibition.

Application denied. No error in the ruling of the trial court.


text:
    STATE of Louisiana v. Bruce AUCOIN.
    No. 57568.
    Supremo Court of Louisiana.
    April 9, 1976.
   In re: Bruce Aucoin, applying for writs of review and for a stay order.

Granted. (See order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Wayne P. Bourg, Judge of the City Court of Morgan City, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show tause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Bobby MOORE.
    No. 57728.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: Bobby Moore applying for Writs of Certiorari, Prohibition and Mandamus.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Leon Ford, III Judge of the 21st Judicial District Court, for the Parish of Tangipahoa, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Michael W. JACKSON.
    No. 57621.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: Michael W. Jackson, applying for writ of review.

Granted — and consolidated for hearing with State v. Boettcher, La., 329 So.2d 451. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the 19th Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

Granted — and consolidated for hearing with State v. Boettcher, Docket No. 57,558.


text:
    STATE of Louisiana v. Frank Brent McCARROLL and Louis Earl McCarroll.
    No. 57695.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: Frank Brent McCarroll and Louis Earl McCarroll applying for Remedial Writs of Prohibition, Mandamus and Certiorari.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Leon Ford, III, Judge of the 21st Judicial District Court, for the Parish of Tangipahoa, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Arby J. VINCENT, Jr. v. CITY OF NEW ORLEANS.
    No. 57675.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: City of New Orleans applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 326 So.2d 401.

Writ denied. On the facts found by the court of appeal, there is no error of law in the judgment complained of.


text:
    Peggy Jo Hilsmeyer BERRY v. METROPOLITAN LIFE INSURANCE COMPANY et al.
    No. 57723.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: Mrs. Peggy Jo Hilsmeyer Berry, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge. 327 So.2d 521.

Writ denied. No error in the holding as to the issues before the Court.


text:
    Clyde WATSON et ux. v. ILLINOIS CENTRAL GULF RAILROAD COMPANY et al.
    No. 57737.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: Illinois Central Gulf Railroad, applying for writ of mandamus, prohibition or certiorari. 327 So.2d 518.

Writ denied. Under the facts of this particular oral examination, we cannot say the result is incorrect, either under La. Code of Civil Procedure, Art. 1454 if defendant unreasonably acted in bad faith so as to cause termination of the deposition, or because the objection was without substantial justification so as to entitle the opponent to attorney’s fees under La.Code of Civil Procedure, Art. 1511.


text:
    Warren J. MOITY, Sr. v. BORDELON CHEVROLET, INC.
    No. 57720.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: Warren James Moity, Sr., applying for writ of Certiorari and review.

Writ denied. There is insufficient showing to warrant our finding that the Court of Appeal committed error.


text:
    STATE of Louisiana ex rel. Arthur H. BARNES v. C. Paul PHELPS, Warden, Louisiana State Penitentiary, et al.
    No. 57645.
    Supreme Court of Louisiana.
    April 20, 1976.
   In re: Arthur H. Barnes applying for Writ of Habeas Corpus.

Granted. Evidentiary hearing ordered.


text:
    CITY OF BATON ROUGE v. Charles A. TYLER.
    No. 57652.
    Supreme Court of Louisiana.
    April 20, 1976.
   In re: Charles A. Tyler, applying for writ of Certiorari.

Writ denied. There is no error of law.


author: EDWARDS, Judge.

text:
    Louella M. WALKER v. Joseph T. FONTENOT et al. Carol Wells CLARK v. Joseph T. FONTENOT et al.
    Nos. 10602 and 10603.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused May 28, 1976.

      Iddo Pittman, Jr., Hammond, for Fonte-not & Wild.
    Charles B. W. Palmer, Amite, for Walker.
    L. Barbee Ponder, Jr., Amite, for defendant Fontenot.
    Hobart O. Pardue, Jr., Springfield, for Clark.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   EDWARDS, Judge.

There occurred early in the morning of February 13, 1971 an automobile accident involving the plaintiffs, Louella M. Walker and Carol Wells Clark, in one vehicle and Joseph T. Fontenot in another. The plaintiffs, in separate suits, sued Fontenot for their damages. Fontenot filed a third-party demand against Willie E. Wild d/b/a Wild’s Insurance Agency, and Wild filed a third-party demand against his. employee, Carol Kropog, and her husband. The suits were consolidated for trial.

Judgment in the Clark suit was rendered on October 2, 1974 as follows: in favor of Carol Wells Clark and against Joseph T. Fontenot for $6,316.05 plus legal interest and costs; in favor of Joseph T. Fontenot and against Willie E. Wild d/b/a Wild’s Insurance Agency for $5,000.00 plus legal interest and one-half of the costs for which Fontenot was cast; in favor of Willie E. Wild d/b/a Wild’s Insurance Agency and against Carol Kropog for $5,000.00 plus legal interest and one-half of the costs therein; and in favor of Ronald Kropog, husband of Carol Kropog, dismissing all claims against him.

Judgment in the Walker suit was likewise rendered on October 2, 1974 as follows : in favor of Louella M. Walker and against Joseph T. Fontenot for $5,276.30 plus legal interest and court costs; in favor of Joseph T. Fontenot and against Willie E. Wild d/b/a Wild’s Insurance Agency for $5,276.30 plus legal interest and one-half of costs for which Fontenot was cast; in favor of Willie E. Wild d/b/a Wild’s • Insurance Agency and against Carol Kropog for $5,276.30 plus legal interest and one half of court costs therein, and in favor of Ronald Kropog, dismissing all claims against him.

Only Wild (third party defendant and plaintiff) timely moved for and perfected an appeal, and, there being no timely answers thereto only his appeal is before this court.

Appellant assigns as error:

(1) the granting of judgment in favor of Fontenot on his third party demand against appellant,
(2) the refusal of the trial court to grant judgment in favor of appellant on his third-party demand against Ronald Kropog,
(3) the amount of the judgments awarded to plaintiffs Clark and Walker

The facts relevant to the issues presented are as follows:

On June 9, 1970, some eight months prior to the accident, Fontenot had gone to Wild’s Insurance Agency to renew his automobile liability insurance. Fontenot had for the past fifteen years been dealing with Mr. Wild, although not continuously so. At this particular time, Mr. Wild was employed at the Livingston State Bank; and his employee of some two years, Carol Kropog, was operating the insurance agency. Fontenot testified that on that day he paid to Mrs. Kropog $80.00 for liability insurance on his two automobiles. This was a down-payment, as the receipt bearing Mrs. Kropog’s name and which was introduced at trial reflected, leaving a balance due of $38.00. Mr. Fontenot testified that it had been his custom in past dealings with Mr. Wild to pay the balance upon receipt of the policies.

Mrs. Kropog, unknown to her employer, had been embezzling relatively small amounts from time to time from the agency funds. To cover this activity, she had intentionally not forwarded several applications for insurance nor premiums therefor which she had collected. Fontenot’s application was likewise not sent, and no policy issued. After the accident this became evident; thus Fontenot sued Wild for failure to procure insurance and Wild sued Mrs. Kropog for her actions and his resultant damages.

(1) Appellant contends that the trial court erred in holding Wild liable to Fon-tenot. The basis of the contention is that Fontenot was under a duty to inquire concerning his policy and that, equitably, he was in a better position to have prevented the loss.

Initially, it is clear that the relationship between Wild and Mrs. Kropog was that of principal and agent. Furthermore, Mrs. Kropog’s agency was general and her authority express: she had authority to quote rates, sell insurance, accept applications, accept premium payments, issue receipts therefor, forward premiums in connection with applications, and write checks for the agency. In Wild’s absence she was solely responsible for operating the agency.

Where the agency relationship exits, the principal will be liable to third persons for all acts committed by the agent in his behalf in the course and within the scope of his authority. 3 C.J.S. Agency § 390.

The disclosed principal’s obligation to third persons for authorized acts of his agent is ex contractu, and not a matter of equity. There is no question but that the acceptance of Fontenot’s application and the premium therefor was an act within the scope of Mrs. Kropog’s authority; Fontenot was under a duty to ascertain nothing further. The act of the agent is that of the principal, and Wild is considered as having accepted the application and premium himself.

The further question is then presented of Wild’s liability for failure to procure insurance for Fontenot.

“Article 3003 of the Civil Code states a mandatary or agent is responsible not only for his unfaithfulness, but also for his fault or neglect. Under that article an insurance agent or broker who undertakes to procure insurance for another owes a duty to his client to use reasonable diligence in attempting to place the insurance timely and to notify the client if he is unable to obtain the same. A prospective insured may recover loss sustained as a result of the agent’s failure to procure the desired coverage when the agent’s actions warrant an assumption by the insured that he was suitably covered.”

Riley v. Carver General Insurance Agency, 279 So.2d 698, 701 (La.App. 4th Cir. 1973) ; Karam v. St. Paul Fire and Marine Insurance Company, 281 So.2d 728 (La. 1973).

The Riley case presented a similar factual situation. The plaintiff applied for a policy of liability, insurance in February and the accident occurred in July. No policy was ever issued, yet the plaintiff recovered.

We hold that the trial court was correct in allowing Fontenot recovery against Wild.

(2) Appellant also complains of the trial court’s failure to hold Ronald Kropog liable to appellant for his wife’s tort.

A similar contention was presented to this court in the case of Bradford v. Brown, 199 So.2d 414 (La.App. 1st Cir. 1967). In the case, a plaintiff, who was shot in a bar by a female employee thereof, sued the tortfeasor, her husband and her employer. We rejected plaintiff’s claim against the husband therein, and, for the same reasons, do so here.

It is well established in the jurisprudence that the husband is not liable for the torts of his wife merely because of the marital relationship. McClure v. Mc-Martin, 104 La. 496, 29 So. 227 (1901); Bradford, supra.

To hold the husband, as head and master of the community of acquets and gains existing between him and his wife, it must be shown that the husband expressly or impliedly authorized the wife to perform the act in question, which must be an actual attending to a community mission or affair. Bradford, supra

The evidence adduced in the trial court clearly shows that Ronald Kropog was unaware of his wife’s act, and therefore could not have authorized it. Furthermore, there was neither any showing that the tortious conduct of Mrs. Kropog was in any way an attending to community affairs, nor that the community received any benefit therefrom.

(3) Appellant finally contends that the amounts awarded to the plaintiffs were not justified and are excessive.

In the absence of any showing otherwise, we will presume that the awards were justified. It is too well established “that, in the assessment of damages in tort cases, ‘much discretion must be left to the judge or jury.’ C.C. 1934 (3).” Fox v. State Farm Mutual Automobile Insurance Company, 288 So.2d 42, 44 (La. 1973); Gaspard v. LeMaire, 245 La. 239, 158 So. 2d 149 (1963).

The decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.