text:
    Vernon ADERHOLT v. STATE.
    8 Div. 752, 752A, 752B, 752C, 752D, 752E, 752F.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    No appearance for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

The instant appeal is from convictions, on guilty pleas, of seven offenses of violating the Alabama Worthless Check Act, Act No. 2479, Acts of Alabama 1971, approved October 1, 1971 (Title 14, § 234(9) et seq. 1973 Cumulative Pocket Part, Code of Alabama, Recompiled).

Separate complaints in each record show the amount of each check to be less than $100.00. Amendments to each complaint allege five prior convictions of passing worthless checks. The record in each case shows that prior to pleading guilty, the appellant was apprised that the range of punishment was, “imprisonment in the jail for not less than none nor more than 6 months for such offense; and for a fine of not less than $50.00 nor more than $100.00.”

Appellant was sentenced to thirty days in jail and fined $75.00 on each case with the court’s agreement that upon making restitution and paying the fine, the jail sentence would be suspended.

The Attorney General has filed a Motion to Consolidate the cases on appeal as they involve identical issues of law and fact. The Attorney General has likewise filed a Motion to Remand in that, “it affirmatively appears that the court did not properly advise the appellant of the minimum-maximum sentences as required in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Carter v. State, 291 Ala. 83, 277 So.2d 896; Moore v. State, 54 Ala. App. 463, 309 So.2d 500.”

The proper range of punishment is set out in Title 14, § 234(20) Code, Recompiled, “CATEGORY I.” The Attorney General’s motions are hereby granted, the cases are consolidated on the instant appeal, and are hereby reversed and remanded for compliance with Boykin, Carter and Moore, supra.

Reversed and remanded.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alice WILLIAMS v. Bettie McAFEE, Administratrix of the Estate of Minnie Daniels Lee, Deceased.
    No. 48555.
    Supreme Court of Mississippi.
    March 23, 1976.
    Wilkins, Ellington & Latham, Jackson, for appellant.
    Martin & Martin, Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; L. B. Porter, Chancellor.

Before INZER, P. J., and SUGG and WALKER, JJ.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, BROOM and LEE, JT., concur.


author: GILLESPIE, Chief Justice:

text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION v. CITY OF JACKSON.
    No. 48539.
    Supreme Court of Mississippi.
    March 16, 1976.

      Bennett E. Smith, Jackson, Joe G. Moss, Raymond, for appellant.
    Perry, Phillips, Crockett & Morrison, John E. Stone, Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice:

Pursuant to an ordinance adopted by the City of Jackson, hereinafter City, on October 5, 1971, the City agreed to purchase from Hinds-Rankin Metropolitan Water and Sewage Association, hereinafter Hir-met, certain facilities for the operation of a water utility beyond the City’s corporate limits. Thereafter the City applied to the Mississippi Public Service Commission, hereinafter Commission, for approval of the proposed purchase and for a certificate of public convenience and necessity to operate the utility. The Commission approved the proposed purchase and issued the requested certificate of public convenience and necessity on January 16, 1973. The order contained no provision with reference to rates to be charged to water customers in the area more than one mile beyond the corporate limits. On August 17, 1973, without prior notice or hearing, the Commission issued a supplemental order fixing a rate schedule to be charged water customers in the newly certificated area beyond one mile from the city limits. City appealed to the Chancery Court of Hinds County, which court held (1) that-the Commission lacked jurisdiction to regulate water rates charged by the City in the area in question, and (2) that issuance of the supplemental order violated due process because it was issued without prior notice or hearing.

This appeal presents two questions:

1. Does the Commission have statutory jurisdiction to regulate water rates charged by a municipality to its customers living more than one mile beyond the municipal limits in an area into which the municipality extended its water utility system after the effective date of the Public Utility Act of 1956 [Miss Gen.Laws, Ch. 372, §§ 1-40 (1956), codified in Miss.Code Ann. §§ 77-3-1 to 89 (1972)] ?

The stated question is one purely of interpretation of Mississippi General Laws, Chapter 372, sections 1-40 (1956). The introductory paragraph of the Act states as follows:

WHEREAS, the services of certain public utilities have been extended to large areas of the state, both within and outside of municipalities, and it is in the public interest that the Public Service Commission of the State of Mississippi be vested with authority to regulate such utilities’ rates and services, so as to assure reasonably adequate services to the inhabitants of this state at rates which will be fair and reasonable to the consumer, and provide a fair return to said utilities, both of which objectives are necessary to the general welfare of this state.

Section 5 of the Act provides that no person shall construct, acquire, extend or operate equipment for the distribution of water for intrastate sale to the public for compensation without first obtaining from the Commission a certificate of convenience and necessity. Other provisions of the Act give the Commission jurisdiction over rates.

Section 1-H of the Act provides:

Any public utility as defined in paragraph D above, owned or operated by a municipality shall not be subject to the provisions of this act, except as to extension of utilities greater than one mile outside of corporate boundaries after the effective date of this act.

There is no conflict between section 1-H and that part of section 4 stating that the Commission shall not have jurisdiction to regulate the rates for the sale of gas, water or electricity by municipalities to such persons as said municipalities. are authorized to serve.

When the 1956 Act was adopted, municipalities were exempt from rates charged or regulation as to purchasing, constructing, improving, enlarging, extending or repairing utility systems. Miss.Code Ann. § 21-27-29 (1972). Also, the existing law, when the 1956 Act was passed, provided that all municipalities owning or operating any system or systems could supply customers residing outside of the city within five miles of the corporate limits, provided customers could not be charged at a greater rate than twice the rate charged for such services within the municipality. Miss.Code Ann. § 21-27-39 (1972).

Reading all of these statutes together, it is apparent that the Public Utility Act of 1956 was intended to exempt from regulation municipal utility systems which municipalities were authorized by law to operate on March 29, 1956, the effective date of the Act.

It is likewise apparent that the Legislature intended that extensions of utilities greater than one mile beyond corporate boundaries after March 29, 1956, would be subject to the provisions of the Act as provided by section 1-H. All parts of a statute are to be given effect if possible. The interpretation we have placed upon the statute is the only one possible if the last clause of section 1-H is given any meaning. Moreover, it is reasonable for the Legislature to place municipally operated utilities — which were being operated one mile beyond corporate limits at the time the 1956 Act went into effect — in one category, and extensions made thereafter, in another. This is an apparent effort by the Legislature to give the utility customers outside the city protection against arbitrary and excessive rates. Those inside the municipality have the ballot to protect themselves from excessive rates. But if municipal utilities, operating in areas outside corporate boundaries, are unregulated, the customers will have no effective political means of assuring reasonable rates. These are probably the considerations that caused the Legislature to place municipal utilities under the Act as to extensions greater than one mile outside corporate boundaries after March 29, 19S6.

City also relies to some extent on the last sentence of section 5(d). We are of the opinion that this sentence, exempting municipally operated utilities from regulation under the Act, refers to utilities operated inside the municipality. The context in which the exemption is made so indicates.

2. Is the rate order issued by the Commission without notice to the City void for failure to accord the City due process†

When the Commission issued its certificate of public convenience and necessity on January 16, 1973, it lost jurisdiction and no notice was given the City thereafter prior to the issuance of the rate order. We are of the opinion that the rate order was void as being violative of procedural due process. Cf. Mississippi Railroad Commission v. Gulf, M. & N. RR., 170 Miss. 724, 155 So. 212 (1934).

We hold that the Commission has jurisdiction to regulate rates charged by the City for water to customers in the area into which it extended its water utility after March 29, 1956, and which is beyond one mile from the corporate boundaries. The part of the chancery court’s decree holding to the contrary is reversed. We affirm that part of the decree holding that the rate order issued by the Commission was void for lack of procedural due process. The Commission may proceed to initiate further proceedings to regulate rates in the area in question.

Reversed in part, affirmed in part, and rendered.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

      . Section 4 provides as follows: “Provided, further, the commission shall not have jurisdiction to regulate the rates for the following sale of commodities or services: (1) sales of gas, water or electricity by municipalities to such persons as said municipalities are authorized by law to serve; . . . ”

      . Section 5(d) provides as follows: “When more than one utility, including co-operatives, operate within a municipality all such utilities, including co-operatives, shall be subject to rate regulation therein. Provided, further, that municipally operated utilities shall not be subject to regulation under this act.”


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Glenda N. MOONEY.
    No. 48552.
    Supreme Court of Mississippi.
    March 23, 1976.
    Emmette P. Allen, Brookhaven, for appellant.
    Glenda N. Mooney, pro se.
   Appeal from Special Court of Eminent Domain, Lincoln County; Mike Carr, Special Judge.

Before INZER, P. J., and SUGG and WALKER, JJ.

Reversed and remanded.

GILLESPIE, C. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.

PATTERSON, P. J., took no part.


text:
    James Arthur SAXTON v. H. C. McFARLAND and Christine M. Culipher.
    No. 48577.
    Supreme Court of Mississippi.
    March 23, 1976.
    Case, Montgomery & Smith-Vaniz, Canton, for appellant.
    Wise, Carter, Child, Steen & Caraway, William M. Dalehite, Jr., Jackson, Herring, Herring & Christopher, Canton, for appellees.
   Appeal from Circuit Court, -Madison County; Rufus H. Broome, Judge.

Before PATTERSON, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


author: SUGG, Justice, for the Court:

text:
    TEXAS PACIFIC OIL COMPANY, INC. and State Oil & Gas Board of Mississippi v. PETRO GRANDE, INC. and Robinson Resource Development Company, Inc.
    No. 49097.
    Supreme Court of Mississippi.
    March 23, 1976.

      Brunini, Grantham, Grower & Hewes, Edmund L. Brunini, Jr., Charles P. Adams, Jr., A. F. Summer, Atty. Gen., by P. L. Douglas, Asst. Atty. Gen., Jackson, for appellants.
    Green, Cheney, Jones, Hughes, McKib-ben & Stack, Morse & Morse, Jackson, for appellees.
    Before INZER, SUGG and WALKER, JJ-
   SUGG, Justice, for the Court:

The Circuit Court of Jasper County reversed an order of the State Oil and Gas Board that supplemented and amended the Special Field Rules for the Lake Como Field. Texas Pacific Oil Company, Inc. and the Oil and Gas Board have appealed seeking reinstatement of the order as promulgated. The questions on this appeal are, (1) does surface acreage content remain the basis of allocating the allowable production of oil and gas between a unitized drilling unit and a non-unitized individual drilling unit which produce from the same oil pool, (2) if so, does allocation based on surface acreage content deny the individual drilling unit the equal protection of the laws, and (3) is there substantial evidence to support'Special Field Rule 4(D) which allows a well in the unitized drilling unit to produce twice the daily allowable assigned to an off-setting well in the adjacent drilling unit ?

Five oil wells produce from the Smack-over Oil Pool in the Lake Como Field in Jasper County. The Smackover Pool is a small pool which runs northwest from a point where two fault lines intersect, gradually widening as it runs to the northwest. Texas Pacific Oil Company, Inc. proposes to institute secondary recovery operations to recover an additional 2,500,000 barrels of oil from the pool. Secondary recovery will be accomplished by injecting salt water in a producing well located near the northwest corner of the pool to increase pressure in the pool and cause the oil to flow toward the southeast. Texas Pacific contends that production of oil will be increased in all wells, particularly in the Scott and Massey wells in the southeast part of the pool. The Massey well is located at the southeastern end of the pool.

Upon petition of Texas Pacific, the State Oil and Gas Board approved a plan of unit operation, or unitization, that unitized four of these wells into the “Smackover Unit” comprising 1,034 surface acres. Unitization was pursuant to the Fieldwide Unitization Act of 1964, amended in 1972 and presently codified as Mississippi Code Annotated sections 53-3-101 to -119, as amended, (Supp.1975). The purpose of unitization is to permit effective secondary recovery operations from the Smackover Oil Pool. The fifth well, called the Massey Unit, elected not to participate in unitization and was therefore known as an “individual drilling unit.” This unit contained 160 surface acres. In addition to approval of the plan of unitization, the Board reduced the daily allowable of production of the Smackover Oil Pool from 2500 barrels of oil per day to 2,000 barrels per day.

Upon a second petition of Texas Pacific, the Oil and Gas Board supplemented and amended the Special Field Rules for the Lake Como Field to coordinate them with the secondary recovery program for the Smackover Oil Pool. Rule 4(B) established surface acreage content as the basis of allocating the daily allowable of production between the Smackover Unit and the Massey Unit.

The daily allowable of such pool shall be allocated as follows: To each individual drilling unit there shall be allocated that proportionate part of the pool’s daily allowable that the surface acreage content of such individual drilling unit bears to the total surface acreage contained within all such individual drilling units plus the acreage contained within the Smackover Unit. The remainder of the daily allowable for such pool shall be be allocated to the Smackover Unit.

When applied to the daily allowable of production, this formula allocated 1732 barrels per day to the Smackover Unit and 268 barrels per day to the Massey Unit. Prior to unitization and reduction of the daily allowable of production, the four Smack-over Unit wells produced 1800 barrels per day and the Massey Unit well produced 400 barrels per day. Rule 4(D) of the Special Field Rules provided that the allowable production of any unit draining the Smackover Oil Pool could be produced by any well or wells on the unit and mandated that “Smackover Unit wells directly or diagonally offsetting individual drilling units shall not be allowed to produce more than twice the daily allowable assigned to nondeficient individual drilling units.” In practice this rule permits the Scott Well of the Smackover Unit to produce twice the daily allowable assigned to the Massey Unit, or 536 barrels per day.

Petro Grande, Inc. and Robinson Resource Development Company, Inc., majority owners of the Massey Unit, appealed to the Circuit Court of Jasper County protesting Rules 4(B) and (D). The court reversed the Board’s order, holding that the Fieldwide Unitization Act does not contain any mechanical formula by which production is to be allocated but requires only that allocation shall be “fair and equitable.” In concluding that there was no evidence that surface acreage allocation was fair and equitable in this case, the court emphasized the fact that the Board’s order required surface acreage allocation between the Smackover Unit and the Massey Unit but that “factors other than a mere mechanical acreage allocation went into the assigning of production among the once individual units that were incorporated into the fieldwide unit.” The court held that this different treatment was “grossly unfair” and denied the Massey Unit owners the equal protection of the laws. Finally, the court struck down Rule 4(D) as “unfair on its face” and unsupported by evidence.

I.

Prior to 1964 it was settled in this state that surface acreage content was the basis of allocating the daily allowable production of oil and gas between a unitized drilling unit and an individual drilling unit sharing a common source of oil and gas. Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635 (1964) ; Corley v. Mississippi State Oil and Gas Board, 234 Miss. 199, 105 So. 2d 633 (1958); Humble Oil and Refining Company v. Welborn, 216 Miss. 180, 62 So. 2d 211 (1953); Mississippi Code Annotated section 6132-21 (d) (1956 Recomp.) [now Mississippi Code Annotated section 53-3-5 (d) (1972)]. The 1964 Fieldwide Unitization Act, as amended in 1972, permits the unit operation, or unitization, of an entire oil or gas field, pool, pools, or portions or combinations thereof, upon the finding and fulfillment of certain enumerated facts and conditions by the Oil and Gas Board. See Mississippi Code Annotated sections 53 — 3— 103, -105, -107, as amended, (Supp.1975).

The lower court made two critical errors in its review of this Act. First, the Act prescribes “contributing value to the unit” as the basis, of allocating production among the members of the unitized drilling unit. Mississippi Code Annotated section 53-3-105(c), as amended, (Supp.1975). Second, the Act does not change or alter the law establishing surface acreage content as the basis of allocating production between a unitized drilling unit and an individual drilling unit; surface acreage allocation survived the 1964 Act and its subsequent amendments and remains the basis of allocating production between a unitized drilling unit and an individual drilling unit. Rule 4(B) of the Special Field Rules correctly requires surface acreage content as the basis of allocating the daily allowable of production between the Smackover Unit and the Massey Unit.

II.

Allocation based on surface acreage content does not deny the Massey Unit owners the equal protection of the laws. We upheld this very formula in Barnwell, Inc. v. Sun Oil Company, supra, as an exercise of the state’s police power over industry. Moreover, it is clear that there are legitimate state interests in maintaining the two formulas of allocation: The encouragement of participation by all drilling units sharing a common source of oil and gas in secondary recovery operations, and the prevention of a non-participating unit from enjoying the benefits of secondary recovery without sharing in the costs. The classification is related to legitimate state interests and the means chosen to effectuate those interests are reasonable. Sharpe v. Standard Oil Co., 322 So.2d 457, 460-61 (Miss.1975).

III.

The lower court erred in striking down Rule 4(D). The rule is one of limitation in two senses of the word: It prevents the Smackover Unit from producing all of its daily allowable from one well adjoining the Massey Unit and attempts to reduce to a minimum the benefits that the Massey Unit will enjoy from the forced oil flow toward the Massey Unit created by the secondary recovery operation. The rule does not alter the Smackover Unit’s overall allowable but merely permits the Smack-over Unit to shift part of its total allowable to the Scott Well to offset any undue benefits accruing to the Massey Unit from the secondary recovery project in which it is a non-participant. There was conflicting evidence on this question, but Texas Pacific presented substantial evidence to support the Board’s promulgation of Rule 4(D).

We note that there is currently pending before this Court an appeal contesting the formation of the Smackover Unit. We express no opinion as to whether or not the Board acted properly in approving the plan of unit operation but limit this decision to the issues discussed. The judgment of the circuit court is reversed and the order of the Oil and Gas Board reinstated.

REVERSED AND ORDER OF BOARD REINSTATED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


text:
    The HOUSING AUTHORITY OF the CITY OF GULFPORT v. GULF NATIONAL BANK.
    No. 48571.
    Supreme Court of Mississippi.
    March 23, 1976.
    Eaton, Cottrell, Galloway & Lang, Gulf-port, for appellant.
    Mize, Thompson & Blass, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before PATTERSON, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


text:
    Floyd L. NICHOLSON v. STATE of Mississippi.
    No. 48961.
    Supreme Court of Mississippi.
    March 23, 1976.
    Floyd L. Nicholson, pro se.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County ; J ames D. Hester, J udge.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Dave EPPS v. STATE of Mississippi.
    No. 48943.
    Supreme Court of Mississippi.
    March 23, 1976.
    Barrett, Barrett & Barrett, Lexington, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Holmes County; B. B. Wilkes, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Francis Edward HARRINGTON, Jr. v. STATE of Mississippi.
    No. 48949.
    Supreme Court of Mississippi.
    March 23, 1976.
    V. Douglas Gunter, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County ; Russell D. Moore, Judge.

Before PATTERSON, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


text:
    Jimmy P. HARRIS v. Jack ROBINSON, d/b/a Jack Robinson’s Used Cars.
    No. 48540.
    Supreme Court of Mississippi.
    March 9, 1976.
    Rehearing Denied April 6, 1976.
    Gene Brown, Thomas K. Plolyfield, Meridian, for appellant.
    Peter K. Smith, Quitman, for appellee.
   Appeal from Circuit Court, Clarke County; Lester F. Williamson, Judge.

Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.

Affirmed.


author: ROBERTSON, Justice:

text:
    Tommy Ray BASS v. STATE of Mississippi.
    No. 48841.
    Supreme Court of Mississippi.
    March 16, 1976.
    Dale & Upton, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice:

Tommy Ray Bass was indicted, tried and convicted in the Circuit Court of Lawrence County of embezzlement of 7.84 cords of pine pulpwood of the value of $234.50, the property of Monticello Forest Products Corporation. He was sentenced to serve a term of five years in the state penitentiary, but because this was his first felony offense the court suspended the execution of the sentence for a period of five years and placed Bass on probation under the supervision of the State Probation and Parole Board.

As the eleventh condition of suspension, the court provided:

“(k) And, further, that he pay fine in the amount of $1,000 on or before August 4, 1975.”

Defendant appeals.

On June 27, 1974, Bass was completing his work as the logging contractor employed by Monticello Forest Products Corporation to cut and haul the timber from the Evans tract in Lawrence County to the Georgia-Pacific mill either at Taylorsville, or Goss in Marion County. When Earl Smith and Leroy Summers of Monticello Forest Products corporation checked with Bass at the Evans property, Bass told them that he was loading his second load of pine logs.

Smith testified that about a week later he called Bass because Georgia-Pacific had only returned one delivery ticket for June 27th. Bass promised to look up the ticket and get it to Smith. Not having done this, Smith called Bass back. Smith testified:

“He told me he carried it to Columbia Pulp and Paper and asked me reckon what could he do. I said, ‘The thing for you to do is to come back up here and talk to these people and settle up with them’ and he told me he’d be up there in a day or two and talk with them.”

Bass never did settle up.

Bass assigns as error:

“1. The court erred in overruling the appellant’s motion to quash the indictment filed in this cause.

“2. The trial court erred in overruling the appellant’s motion for peremptory instruction of ‘not guilty’ at the close of the prosecution’s case, and likewise, defendant’s motion for directed verdict at the conclusion of all testimony.

“3. The sentence imposed by the court to the extent that a fine is levied against the appellant is in excess of that authorized by statute.”

The ground for the motion to quash was that the circuit court of Lawrence County did not have venue because the offense was not committed until the load of logs was delivered to Columbia Pulp and Paper in Marion County.

Mississippi Code Annotated section 99-11-19 (1972) provides:

“When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.” (Emphasis added).

Clarence Barnes, the driver of Bass’s only truck testified that on June 27, 1974, when the truck was being loaded at the Evans tract in Lawrence County that Bass himself instructed Barnes to deliver that load to Columbia Pulp and Paper Company. The offense thus was partly committed in Lawrence County and fits squarely within the statute, prosecution having been first begun in Lawrence County. See State v. Hogarth, 317 So.2d 384 (Miss. 1975); Rogers v. State, 266 So.2d 10 (Miss.1972); Aldridge v. State, 232 Miss. 368, 99 So.2d 456 (1958); Murry v. State, 98 Miss. 594, 54 So. 72 (1910).

The second assignment of error is that there was a fatal variance between the indictment and the proof because the indictment said 7.84 cords of pine pulpwood, and the proof was 7.84 cords of pine logs.

The third assignment of error was that the State failed to prove that Monticello Forest Products Corporation was a corporation.

Both of these points were raised for the first time on appeal. Not being jurisdictional, these alleged errors fail under the provision of Mississippi Code Annotated section 99-35-143 (1972) :

“A judgment in a criminal case shall not be reversed because ... of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record show that the errors complained of were made ground of special exception in that court.” (Emphasis added).

See Jones v. State, 279 So.2d 594 (Miss. 1973); Ellis v. State, 254 So.2d 902 (Miss.1971); Pieratt v. State, 235 So.2d 923 (Miss.1970).

The fourth error assigned was that the trial court erroneously admitted into evidence a photostatic copy of a check for $234.50 issued June 28, 1974, by Columbia Pulp and Paper Co. to Tommy R. Bass.

When this exhibit was offered, the only objection made was that it was a copy and the original should be produced. The absence of the original was explained by Darrell Kelsoe, who signed the check for Columbia Pulp and Paper Company, and who identified the photostatic copy as an exact copy of the original, but not including the endorsements on the back of the check. Witness Kelsoe’s explanation completely satisfied the trial judge. In addition, Mississippi Code Annotated section 13-1-151 (1972) specifically covers copies made by the photographic or photostatic process:

“Any business may cause any or all records kept by such business in the regular course of its operation to be recorded, copied or reproduced by any photographic, photostatic or miniature photographic process which correctly, accurately and permanently copies, reproduces or forms a medium for copying or reproducing the original record on a film or other durable material, .
“Any such photographic, photostatic or miniature photographic copy or reproduction shall be deemed to be an original record for all purposes and shall be treated as an original record in all courts or administrative agencies for the purpose of its admissibility in evidence.” (Emphasis added).

The trial court did exceed its statutory authority when it attempted to add a $1,000 fine to the sentence.

Mississippi Code Annotated section 97-23-25 (1972), provides:

“If any person shall fraudulently appropriate personal property or money which has been delivered to him on deposit, or to be carried or repaired, or on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds, on conviction, he shall be punished by imprisonment in the penitentiary not more than ten years, or be fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.” (Emphasis added).

The two methods of punishment are alternative methods; the disjunctive conjunction “or” connects them. The trial court elected to sentence the defendant to imprisonment in the state penitentiary. Having chosen this method, the trial court, under the guise of a condition of the suspension, could not impose the additional sentence of paying a $1,000 fine.

The conviction is, therefore, affirmed, and the sentence to serve a term of five years in the penitentiary (suspended for five years) is also affirmed, but the additional sentence to pay a $1,000 fine is reversed and the fine canceled.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, SUGG and WALKER, JJ., concur.

BROOM, J., took no part.


author: SUGG, Justice:

text:
    J. D. BOOKER v. STATE of Mississippi.
    No. 48861.
    Supreme Court of Mississippi.
    March 23, 1976.
    -Leon E. Provine, Grenada, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for ap-pellee.
   ON MOTION FOR STAY OF JUDGMENT

SUGG, Justice:

Petitioner, J. D. Booker, has filed a motion for stay of judgment pending filing of a petition for writ of certiorari in the United States Supreme Court. The motion is denied because petitioner has not complied with Rule 45 of the Mississippi Supreme Court Rules in that he did not file with his motion for stay of judgment, (1) a duplicate copy of the petition for certiorari filed with the United States Supreme Court, (2) a certificate of the attorney for the petitioner that the original of the petition has been filed with the Clerk of that Court, or (3) a fully executed and approved appearance bond in a penal sum equal to double the amount of the bond upon which petitioner was released from custody pending his appeal to this Court.

MOTION DENIED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

      . Motions and petitions filed with this Court for release on appearance bond pending petition to the United States Supreme Court for certiorari seeking review of a decision of this Court affirming a criminal conviction will be considered only when accompanied by the following documents: (1) a duplicate copy of the petition for certiorari previously filed with that Court showing a genuine federal question previously presented to this Court; (2) a certificate of the attorney for the applicant that the original of the petition for certiorari has been filed with the Clerk of that Court; and (3) a fully executed and approved appearance bond in a penal sum equal to double the amount of the bond upon which the applicant was released from custody between the time of conviction and the time the conviction was affirmed.


author: TATE, Justice. SUMMERS, Justice

text:
    Clyde E. HARPER, Plaintiff-Appellant-Relator, v. STATE of Louisiana, DEPARTMENT OF REVENUE, and Commission on Alcoholic Beverage Control, et al., Defendants-Appellees-Respondents.
    No. 56549.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Dissenting Opinion March 31, 1976.
    C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, plaintiff-applicant.
    Robert L. Roshto, Commission on Alcoholic Beverage Control, Baton Rouge, for defendants-respondents.
   TATE, Justice.

The plaintiff Harper’s application for a retail beer permit was denied. By these proceedings, he seeks judicial review of the administrative denial of his application. La.R.S. 26:104. The district and intermediate courts upheld the denial. 313 So.2d 39 (La.App.3d Cir. 1975).

The application for a permit was denied because of a parish prohibition ordinance adopted in 1941 as authorized by a local-option election. La.R.S. 26:272, subd. A (1) authorizes denial of a permit in any subdivision “wherein that business has been prohibited by a local-option election.”

Due to a 1950 change in state law (see below), the prohibitory ordinance adopted as a result of the local-option election is now invalid. We granted certiorari, 317 So.2d 625 (1975), to consider the holding of the previous courts herein that, nevertheless, such an ordinance may be held partially valid so as to justify withholding retail beer permits, despite its admitted invalidity for purposes of criminal punishment for violations thereof.

The ordinance in question was adopted in 1941 and prohibited the sale of all intoxicating beverages in Ward Two of the parish. It was enacted by the governing party to effectuate the result of a wardwide local-option election to such effect held earlier in the year. The election and ordinance were valid under state statutes then in effect.

However, by reason of 1950 legislation, local-option elections or ordinances can no longer prohibit selling of beverages containing less than 3.2% alcohol by weight. La.R.S. 26:588 (1950); State v. Sissons, 292 So.2d 523 (La.1974). Under Sissons and succeeding jurisprudence, therefore, the ordinance was invalid in its prohibition of the sale of beverages of any alcoholic content (i.e., of more than i/£% by volume).

Essentially, the plaintiff contends that the 1941 ward prohibition ordinance was totally invalidated by the 1950 state legislation. On the other hand, the defendant agency contends that the ordinance (prohibiting the sale of all intoxicating beverages) can be judicially revised so as to remain partially in effect by limiting its prohibition so as to apply against the sale only of beverages containing more than 3.2% alcohol.

In State v. Sissons, 292 So.2d 523 (La. 1974), we held that local-option ordinances in conflict with the 1950 state law were invalid. We stated, 292 So.2d 525-26:

“The power to regulate traffic in alcoholic beverages is vested in the State and the legislature may delegate such power to political subdivisions of the state. See State v. Emerson, 197 La. 783, 2 So.2d 212 (1941) ; State v. Gardner, 198 La. 861, 5 So.2d 132 (1941). However, by so delegating the State does not surrender its power and the legislature can at any time alter or recall the delegated power. State v. Gardner, supra; State v. City of New Orleans, 151 La. 24, 91 So. 533 (1922). Generally, a police regulation of a subdivision of the State enacted pursuant to authority delegated by the State cannot exceed the grant of authority and must fall when it conflicts with State law. See La.Const. Art. 14, § 40(d) (1921). Cf. City of Alexandria v. La Combe, 220 La. 618, 57 So.2d 206 (1952); State v. Bradford, 220 La. 176, 56 So.2d 145 (1951).”

In striking down the Sissons ordinance, we noted that it was invalid as exceeding the legislative delegation of power because, inter alia, it purported “to prohibit beverages with an alcoholic content which by the terms of R.S. 26:588 may not be regulated by local prohibition.” 292 So.2d 526.

We have consistently thereafter adhered to Sissons: Tolar v. State, 315 So.2d 22 (La.1975); Patrick’s Cafe, Inc. v. Red River Parish Police Jury, 315 So.2d 27 (La.1975); Williams and Chandler v. State, Department of Revenue, 315 So.2d 31 (La.1975); State v. Wright, 305 So.2d 406 (La.1974).

In the present case, the previous courts distinguished Sissons and Wright as involving criminal penalties and the rule of strict construction in connection therewith. They were of the opinion that, in civil proceedings, a rule of liberal construction would permit partial validation of the 1941 local-option election and ordinance. They therefore held that, although the ordinance was invalid in the prohibition of the sale of all alcoholic beverages, it could be construed for civil licensing purposes as permitting prohibition of the sale of alcoholic beverages of more than 3.2% alcohol, i.e., as prohibiting only beverages which by the 1950 statute could be thereafter prohibited by local-option election and ordinance.

We are unable to find jurisprudential support for the holding that the local-option ordinance, invalid because of conflict with state law, can nevertheless serve as a basis for the denial of permits to sell beer, even though admittedly invalid as a basis for criminal prosecution for violation thereof. The local-option ordinance which prohibited the sale of any alcoholic beverage is invalid because, as enacted, the ordinance is no longer authorized by state law. If the prohibitory ordinance is indeed invalid, the denial of a license to pursue a (thus) non-prohibited retail occupation cannot be based on the invalid prohibitory ordinance.

Actually, subsequent to the intermediate decision in the present case, we rendered decisions in Tolar, Patrick’s Cafe, Williams, and Chandler, cited above, the effect of which was to order issuance of licenses, as not barred by ¿"moMi-invalidated ordinances.

We are thus unable to accede to the persuasive suggestions of our brethren of the previous courts that we construe the intended total prohibition expressed by the ordinance as now providing a lesser prohibition of only such beverages as local ordinances are now statutorily authorized to prohibit. To hold that ordinance to possess such different meaning, despite its express terms to the contrary, is to enact a new ordinance rather than to construe an old.

The local governing body and the people of the area may, of course, do so after valid election and enactment. For the courts so to re-write the express words of the ordinance, is a judicial amendment of it not authorized by traditional principles of statutory interpretation:

A court cannot re-draft and reenact an ordinance invalid as inconsistent with state law, by judicially limiting the application of its express terms to consistency with the state statute. Town of Waterproof v. Towles, 180 La. 168, 156 So. 211 (1934). See also 2 Sutherland on Statutory Construction Sections, 44.14-44.-17 (4th ed., Sands; 1973). Under general principles of statutory construction, legislation cannot be partially validated by finding separable its valid from its invalid provisions, except when .the valid portions of the enactment are independent of the invalid portions. Louisiana State Department of Agriculture v. Sibille, 207 La. 877, 22 So.2d 202 (1945); Womack v. Varnado, 204 La. 1019, 16 So.2d 825 (1943). See 2 Sutherland on Statutory Construction, Section 44.04, see also Section 44.01 (4th ed., Sands; 1973).

Accordingly, for the reasons assigned, we hold that the petitioner cannot be denied, by reason of the invalid 1941 local-option ordinance, a permit to sell alcoholic beverages in a retail beer outlet, in accordance with his application to the state agency. We therefore reverse the judgments below and remand this case to the district court for further proceedings consistent with the views herein expressed.

Reversed and remanded.

SANDERS, C. J., dissents, being of the opinion that the judgment of the Court of Appeal is correct. See 313 So.2d 339.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Court of Appeal. See 313 So.2d 339.

      . Under the statute, the prohibition of the sale of intoxicants results, not from the election itself, but from the subsequent local prohibitory ordinance which the governing body is required to enact to give effect to the result of the election. La.R.S. 26:595; Perot v. Police Jury of Natchitoches Parish, 208 La. 1, 22 So.2d 666 (1945).


author: DIXON, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Jep B. GINN.
    No. 56725.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Dissenting Opinion March 31, 1976.
    ■George L. Clauer, III, Barnes & Barnes, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Sr., Dist. Atty., Calvin C. Fay-ard, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Defendant was convicted of driving while intoxicated, a violation of R.S. 14:98. He applied to this court for writs of certiorari, raising the question whether the result of the Photo-Electric Intoximeter (PEI) tests given defendant was admissible to trigger the presumption of intoxication provided by R.S. 32:662. We hold that it was not.

While operating his automobile along Louisiana Highway 64, defendant was stopped by Trooper William Spencer. The trooper checked defendant’s driver’s license and allowed him to proceed. As defendant drove away, Trooper Spencer noticed he was crossing the mid-line of the highway and was “straddling” the center line of the road. The trooper then stopped defendant a second time and administered a field test for sobriety (requiring defendant to touch his nose with his finger), which defendant failed. Trooper Spencer noticed an odor of alcohol about defendant and placed him under arrest. The trooper issued defendant his Miranda warnings and his rights concerning the PEI test. Defendant was taken to the Denham Springs police department and given the PEI test.

At trial, Trooper Spencer testified he was trained at the forty hour course on breath analysis given by the Division of State Police. His certificate from this course as well as a certificate from the Louisiana Health and Human Resources Administration, Division of Health, is included in the record before us. Trooper Spencer further testified that the result of defendant’s PEI test was .163 grams per cent. Defendant objected to this testimony on the grounds that there had been no showing of compliance with R.S. 32:663 as required by our decision in State v. Jones, 316 So.2d 100 (La.1975).

R.S. 32:663 provides:

“Chemical analyses of the person’s blood, urine, breath or other bodily substance, to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the state department of health and by an individual possessing a valid permit issued by said department for this purpose. The state department of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department.”

In State v. Jones, supra, the State cited two written instruments in support of its contention that the PEI test had properly been approved by the department of health. One of these instruments was a letter dated September 16, 1969 from George M. Hauser to the effect that the breath analysis techniques taught at the forty hour course given by the Division of State Police was “hereby approved by the Louisiana State Department of Health.” The second instrument was a December 19, 1974 pronouncement by the Louisiana Health and Human Resources Administration that the approved method was the PEI test manufactured by Intoximeter, Inc., St. Louis, Missouri (or any approved equivalent). Since the results of these tests determine whether the presumption of R.S. 32:662 comes into play, we held that R.S. 32:663 required “much more” than the evidence cited by the State.

The evidence relied upon in the case before us is substantially the same evidence discussed above and in State v. Jones, supra.

The record reveals a letter dated February 20, 1975 from the same George M. Hauser addressed “to whom it may concern” and to the effect that the PEI test “has been approved for the determination of breath test for alcohol in accordance with R.S. 32:661-8, Act 273.” This letter provides no more than the letter in Jones.

The record also contains an instrument by the Division of Health dated December 19, 1974 and entitled “Rules and Regulations: Tests for Suspected Drunken Drivers.” This is the same instrument we referred to in Jones; it provides, among other things, that “the method approved for breath testing for alcohol is the PhotoElectric Intoximeter Test performed with the instrument manufactured by Intoxi-meter, Inc., St. Louis, Missouri or any equivalent machine which is approved by the Bureau of Laboratories, State Division of Health.”

For the reasons heretofore announced, we reiterate our holding in Jones:

“. . . the State may not avail itself of the presumptions available under La. R.S. 32:662 until the ‘state department of health’, that is, the Louisiana Health and Human Resources Administration, establishes and promulgates carefully detailed methods, procedures and techniques covering, but not limited to repair, maintenance, inspection, cleaning, chemical accuracy, certification, proof of adherence to which would reasonably assure that the right articulated in Junell, supra [La., 308 So.2d 780], would be recognized and implemented in the courts of law of this State.” State v. Jones, 316 So.2d 100, 105.

The trial judge heard the testimony of the arresting officer, but announced at the conclusion of the trial that . . . based on the results of the test which read .16g%, the Court must find the defendant guilty as charged.” There can be no question of “harmless error,” as argued by the State.

The conviction and sentence are reversed, and the case is remanded to the City Court of Denham Springs.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

A driver crossing the mid-line of the highway, “straddling” the center line of the road, unable to pass a sobriety test by touching his nose with his finger and who expels an odor of alcohol demonstrates “some evidence” of driving while intoxicated, upon which the trier of fact could return a verdict of guilty.

I would not reverse this conviction.

      . “A. The chemical test or tests as provided for by this Part shall be subject to the following rules and shall be administered as provided for hereafter:
      “1. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine, breath or other bodily substance shall give rise to the following presumptions:
      “a. If there was at that time 0.05 per cent or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of alcoholic beverages.
      “b. If there was- at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the person’s blood, such fact shall not give rise to any presumption that the person was or was not under the infuence of alcoholic beverages, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages, “c. If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.
      “B. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.
      “C. The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages.
      “This section has no application to a civil action or proceeding.”


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Leonard COLLINS.
    No. 56485.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Alvin N. Taylor, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Hist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

This matter involves two separate appeals from two separate convictions on separate charges of aggravated rape. Each appeal will be treated separately under this title.

The First Appeal

This case is numbered 230-888 on the docket of the trial court. The prosecution is based upon a grand jury indictment dated October 19, 1972 charging that Leonard Collins committed aggravated rape upon a named victim on August 5, 1972. Defendant was tried on August 15, 1973 by a jury, convicted and sentenced to serve the remainder of his natural life at hard labor. Four bills of exceptions are relied upon for reversal of the conviction and sentence.

Bill No. 1

Officer Alan Sisón, a criminalist for the New Orleans Police Department, was recognized as an expert in the field of identification of substances, including seminal fluid. He testified that he received the panties worn by the victim on the morning of the rape and conducted a chemical test which he described. A positive finding of seminal fluid was the result of the test. He also testified that he tested a knife purportedly used by the defendant but found no blood or seminal fluid present on that object. He was extensively cross-examined by defense counsel relative to the tests without a contradiction or a resulting weakening of his testimony.

When the witness produced the crime lab report in connection with his tests, and the State offered to introduce it into evidence, defense counsel objected that it was not shown that the report was written or signed by the witness. The objection was overruled, and this bill was reserved.

The Court is of the opinion, as the State argued at the time, that the witness’ connection with the report “has been well established.” The document purports to be signed by Sisón and records that the test for seminal fluid was positive. Although the witness did not testify that he had prepare^ the report and signed it, when asked, “Do you have the Crime Lab report in connection with your examination of the panties in this case?”, he answered in the affirmative and produced the report which was in his possession at the time. This testimony, together with his signature on the lab report and the similarity between his testimony and the content of the lab report, provides a strong inference that the lab report was a true record of his tests. This inference has not been rebutted in any particular.

This bill has no merit.

Bill No. 2

When the victim testified on behalf of the State, she identified the panties she wore on the day of the rape. When the State sought to introduce them into evidence, the defense objected that there was no evidence in the record showing when the garment was obtained from the victim and, if so, by whom. The trial judge admitted the evidence with the understanding that the objection would go to the weight, rather than to the admissibility. Impliedly, he found the evidence admissible.

Defendant’s objection is based upon an asserted lack of proof of a chain of custody or connexity during the interval between the alleged offense and the time of the trial. As already noted, the victim unequivocally identified the underpants as hers and as being the ones she was wearing on the day of the alleged rape. And, as noted in connection with our consideration of Bill No. 1, the evidence establishes that the garment was stained by seminal fluid. This evidence provides sufficient identification and connexity to permit the introduction.

Identification of evidence may be visual,

“. . . that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.” State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L. Ed.2d 173 (1972). See also State v. White, 321 So.2d 491 (La.1975).

This bill has no merit.

Bill No. 3

When the State endeavored to introduce the knife seized from one of defendant’s cars, defendant objected, arguing that the knife was not shown to be the one the alleged rapist used in subduing the victim. The objection was overruled and this bill was reserved.

The victim testified that the knife looked like the one the rapist used to threaten her. One of the testifying officers stated that he recovered the knife from the car belonging to the defendant. Although there was no positive testimony that the knife sought to be introduced was the actual weapon used, the trial court did not err in allowing the knife’s introduction. The test generally applied is whether it is “more probable than not that the object is the one connected with the case.” State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). If the testimony referred to was considered credible by the trial judge, the “more probable’ than not” test has been met. Credibility of witnesses is a matter in which the trial judge’s discretion is broad, and it is a matter concerning which he is particularly well situated to judge. No showing here warrants disturbing his ruling.

Bill No. 4

Defendant objected to the introduction into evidence of a signed waiver of rights form, contending that the trial testimony had failed to establish when the signature was affixed to the document. This bill was reserved when the trial judge overruled the objection.

Several officers testified that defendant was arrested on October 3, 1972, and about eight o’clock that evening they orally advised him of his rights upon arrest. Defendant was again advised of his rights when he signed the written waiver, prior to making a statement between the hours of eight and nine o’clock that same evening.

No authority is cited to support the defense contention that a more specific time be given, and this Court is unaware of any such authority. The law is satisfied, in our view, if the advice is given shortly prior to any custodial interrogation in such a manner that the arrestee is aware that his statement is made with full knowledge of his rights. In this case that requirement was satisfied.

This bill has no merit.

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

The Second Appeal

This second prosecution is numbered 230-889 on the docket of the trial court and is based upon a separate grand jury indictment also dated October 19, 1972 charging that Leonard Collins on September 21, 1972 committed aggravated rape upon a named victim other than the victim named in case number 230-888. Defendant was tried on this charge on October 25, 1973, convicted and sentenced to serve the balance of his natural life at hard labor, without benefit of parole, probation, commutation of sentence or suspension of sentence, consecutively with any other sentence. On this appeal two bills are relied upon for reversal of the conviction and sentence.

Bill No. 1

During the victim’s direct testimony she described her assailant, mentioning that he had a missing or split tooth in the bottom of his mouth. The prosecutor then asked if the missing or split tooth was in the assailant’s upper or lower jaw, right or left side. She answered the broken tooth was in the lower right jaw. At this time the prosecutor requested that the jury be allowed to see defendant’s lower right jaw, and defense counsel objected.

Later, in brief to this Court defense counsel contends that when Collins was asked to open his mouth and reveal his lower jaw his Fifth Amendment rights were violated.

Requiring a defendant to be observed is demonstrative evidence, and the practice does not violate the defendant’s Fifth Amendment right against self-incrimination. State v. Brown, La., 326 So. 2d 839 (decided Dec. 8, 1975); State v. O’Conner, 320 So.2d 188 (La. 1975).

This bill is without merit.

Bill No. 2

The medical technologist in the Coroner’s Office, whose qualifications as an expert are conceded, testified that she was present during the examination of the victim on the day following the alleged offense; she testified that the test she made on specimens obtained during the examination was positive for the presence of seminal fluid in the victim’s body. She also identified a document bearing her signature which she described as her report from the forensic laboratory. The report, she stated, reflected the results of her examination of the victim. When the State sought to introduce the document into evidence, defense counsel objected that although the report showed the results of an examination it did not show that tests had been made or how the technician arrived at the results.

A review of the pertinent portions of the record indicates otherwise. The medical technologist who made the report testified how the seminal fluid was obtained from the victim by a medical doctor in her presence; she also testified regarding the tests she conducted on the substance and the results obtained. Consequently, the report which the technologist said she made and which she said bore her signature was adequately identified. It was admitted as corroborative of the testimony she gave in court. There was no error in the ruling of the trial judge.

A review of the record discloses that the sentence imposed in this prosecution stipulates that it shall be without commutation of sentence. This is incorrect. As this Court has said, the power to commute sentences is vested in the Governor by the Constitution and this power cannot be curtailed by statute. La.Const. Art. IV, § 5(E) (1974); La.Const. Art. V, § 10 (1921); State v. Ramsey, 292 So.2d 708 (La.1974); State v. Varice, 292 So.2d 703 (La.1974).

For the reasons assigned, the conviction is affirmed, but the sentence is annulled and set aside, and the case is remanded to the Criminal District Court for the Parish of Orleans with instructions to the trial judge to sentence defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. La.Code Crim.Pro. arts. 882, 916.


author: CULPEPPER, Judge.

text:
    Lillian SMITH et vir, Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellee.
    No. 5345.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Kelly & Ware, by Richard N. Ware, Natchitoches, for plaintiffs-appellants.
    Hall, Coltharp & Lestage, by L. H. Col-tharp, Jr., DeRidder, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

The sole issue presented by this appeal is whether the concept of an “underinsured” vehicle, which was added to the uninsured motorist statute of this state by Act 137 of 1972 [LSA-R.S. 22¡1406(D) (2)(b)], must be applied to an accident which occurred before this statutory amendment became effective on January 1, 1973. The district judge sustained the defendant insurer’s exception of no cause of action on the basis that, before the 1972 amendment took effect, our law did not provide coverage where the offending motorist was merely “underinsured”. Plaintiffs appealed this ruling.

The facts, as alleged in the plaintiffs’ petition, are as follows: The plaintiff, Mrs. Lillian Smith, sustained personal injuries on December 5, 1972 when a 1968 Dodge panel truck in which she was riding as a passenger collided with a 1968 Ford log truck. She and her husband filed suit against the owners of the log truck and their insurer, Reliance Insurance Company, and obtained a judgment in the sum of $59,532.31. Pursuant to that judgment, Reliance paid to plaintiffs the sum of $10,000, representing the policy limits of their liability coverage.

Plaintiffs then filed the instant suit against State Farm Mutual Automobile Insurance Company. They allege that at the time of the accident on December 5, 1972 they had two policies with State Farm, each of which provided “uninsured motorist and underinsured motorist” coverage in the sum of $5,000 per person per accident, for a total of $10,000 under the two policies.

At the time of the alleged accident, LSA-R.S. 22:1406, D provided in pertinent part that no automobile liability insurance policy could be issued in this state unless it provided coverage:

“ . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles”. (emphasis supplied)

Act 137 of 1972, which became effective on January 1, 1973, amendment the above quoted language to read:

“ . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underin-sured motor vehicles” (emphasis supplied)

In an apparent attempt to define “under-insured”, Act 137 of 1972 also provided:

“For the purposes of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.” (Emphasis supplied)

Then Act 154 of 1974 again defined “un-derinsured” as follows:

“For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured . . .” (Emphasis supplied)

Plaintiff argues that the above legislative history of the statute shows it was the intent of the statute, even as it read in 1972, to give protection to the insured to the full amount of his damages caused by an uninsured or an underinsured motorist. They cite Elledge v. Warren, 263 So.2d 912 (La.App., 3rd Cir. 1972) for general statements as to the purpose of the act and the rule that it should be liberally construed.

Plaintiffs’ argument has been rejected in at least three Court of Appeal decisions in which our Supreme Court denied writs, thereby indicating its position. In Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3rd Cir. 1974), certiorari denied La., 305 So.2d 134, we held:

“We do not find the 1974 amendment to the law regulating uninsured motorist coverage to be remedial or curative as these terms are used in our jurisprudence. . . . On the contrary, we find that this amendment is a broadening of coverage by the Louisiana Legislature.” (citations omitted)

See also Richard v. Zurich Insurance Company, 318 So.2d 83 (La.App., 3rd Cir. 1975) in which we approved the holding in Doucet; and Curry v. Travelers Insurance Company, 301 So.2d 757 (La.App., 2d Cir. 1974), writ refused, La. 304 So.2d 671 (S. Ct. 1974).

In Lorio v. Safeco Insurance Company of America, 316 So.2d 744 (La.App., 1st Cir. 1975), certiorari denied La., 318 So.2d 52, our brethren on the First Circuit recently stated:

“Prior to the 1972 act, if the offending tort feasor had any liability insurance the victim of the tort was unable to collect any benefits from the. latter’s uninsured motorist insurer. The uninsured status of the offending motorist was a condition precedent to an insured’s recovery against his insurer. It was essential that the uninsured status of the offending motorist be alleged and proved by the party seeking to recover against his own insurer. Talazac v. Phoenix of Hartford Insurance Co., 259 So.2d 636 (4 La.App., 1972) and the cases therein cited.”

In Talasac, supra, the court observed:

“It is required that plaintiff prove, under the uninsured motorist clause of the insurance policy relied upon, that the other motorist in the accident was not covered by an automobile liability policy. Macaluso v. Watson, 188 So.2d 178 (La.App. 4th Cir., 1966).”

We conclude that prior to January 1, 1973, the effective date of Act 137 of 1972, Louisiana law contained no provision for underinsured motorist coverage. Under the law in effect at the time of the accident at issue here, plaintiffs cannot recover, since the negligent motorist was covered by some liability insurance.

For the reasons assigned, the decision of the district court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Myrtle Cobb, wife of/and James WILSON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 7267.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearings Denied March 16, 1976.
    Writ Refused May 4, 1976.

      Peter J. Abadie, Jr., New Orleans, for Myrtle Cobb, w/o and James Wilson, plaintiffs-appellants.
    George J. Kambur, New Orleans, for Mrs. Ada Mae Thompson, Ind., etc., plaintiffs-appellants.
    C. B. Ogden, II, New Orleans, for Frank Russo and New Orleans Public Service, Inc., defendants-appellees-appel-lants.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit by Myrtle Cobb Wilson and her husband James Wilson, against New Orleans Public Service, Inc. for damages arising out of personal injuries to Mrs. Wilson and damage to the community vehicle, which she was driving. The collision occurred at the intersection of Tulane Avenue and S. Galvez St. in the City of New Orleans when Mrs. Wilson attempted to make a right turn maneuver in front of a NOPSI bus. The trial court found the bus driver to be negligent and Mrs. Wilson to be contributorily negligent, dismissing the suit. The plaintiffs have appealed.

This suit was consolidated for trial with case '#7268, Mrs. Ada Mae Thompson, et al v. Frank Russo, et al, a suit brought by the passengers on the bus against both New Orleans Public Service and Mrs. Wilson.

The primary issue in this case is the negligence of the two drivers, Mrs. Wilson and Frank Russo, the bus driver. According to Russo, he had stopped his bus some distance back from the bus stop sign in order to take on passengers because another bus was already occupying the bus stop. As he was taking on a passenger, the other bus pulled off, and Mrs. Wilson, approaching from the rear, made a sharp right turn maneuver attempting to pull in front of the bus, cut too sharply and struck the parked bus with her right side. On the other hand, Mrs. Wilson contends that she was following behind the bus, with another vehicle between them when the bus pulled into the bus stop. The other vehicle swung to its left, proceeded around the bus and turned right onto Tulane Avenue. Mrs. Wilson also swung left and proceeded to turn right in front of the bus in order to enter Tulane Avenue. During the course of this maneuver, the bus pulled out and struck the right rear quarter panel of her vehicle.

Besides the testimony of the two drivers, there was testimony from three passengers on the bus, and the passenger in Mrs. Wilson’s car. The trial court in its reasons for judgment stated that it was not impressed with the testimony of the bus driver, Frank Russo, and neither are we. His testimony is contrary to the preponderance of the evidence in most respects. That preponderance shows that the bus was moving at the time of the collision and we have no difficulty affirming the finding of negligence made by the trial court against him.

The trial court also found contributory negligence by Mrs. Wilson, and we are presented with a very close question on that issue. It is argued on her behalf that she was proceeding in her proper lane for a right turn, that the bus was stopped at the bus stop along the curbing, and that she was actually on the roadway of Tulane Avenue, having made her right angle turn when her vehicle was struck. If these were the facts, we would be compelled to agree with her contention that the case of Farris v. NOPSI, 242 So.2d 335 (La.App. 4th Cir. 1971) would be controlling of the situation here. However, we must note that in our case, unlike Farris, the trial judge found the right turning driver to be negligent, and there is sufficient evidence in the record to support this finding and differentiate these facts from the facts in Farris.

The testimony of the witnesses to this accident is not so clear as to permit the finding of a perfectly precise set of facts. What impresses us most is that the evidence does show that Mrs. Wilson did not completely get to the corner of Tulane Avenue in order to make her right turn maneuver. While unquestionably the bus driver was incorrect in asserting that the bus was at least some forty feet from the corner (the length of the other bus), it is equally ascertainable that the collision did not occur right at the intersection, but some distance back on Galvez Street in the bus stop itself. Mrs. Wilson stated that she was attempting to turn onto Tulane in order to be able to let off her passenger at a restaurant a short distance from the corner. The passenger testified that it was not his intention to go to that restaurant but instead to catch a bus at that corner, and while he insists that he could have caught another bus just as easily as the one parked in the bus stop, he also testified that Mrs. Wilson, after beginning her turn, could have left him off on Galvez Street just as readily as turning the corner onto Tulane Avenue. We also refer to Mrs. Wilson’s explanation as to the location and direction of her vehicle after the collision. She stated that the vehicle was headed towards the bakery at the corner, because it had been turned in that direction due to the collision. While this offers to us a reasonable explanation for the direction in which the car was heading, it also leads us to believe that the location of her car was some distance back on Galvez from the point of the intersection itself. Under these circumstances we believe it reasonable for the trial judge to have concluded that Mrs. Wilson actually made her right turn maneuver into the bus stop itself rather than around the point of the intersection, and such a maneuver in front of a stopped bus which she had been following for some distance constitutes negligence. We find no manifest error in the ruling of the trial judge.

Accordingly, for the reasons above assigned, the judgment appealed from is affirmed at appellants’ cost.

Affirmed.

      . Our opinion and decree in that consolidated case were handed down this day. See, La.App., 328 So.2d 683.


text:
    Mrs. Ada Mae THOMPSON, Individually and as the Provisional Tutrix of the minor, Shermane Robertson, and Landa Hall v. Frank RUSSO et al.
    No. 7268.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.

      George J. Kambur, New Orleans, for Mrs. Ada Mae Thompson, Ind. and others, plainti f f s-appellants.
    Peter J. Abadie, Jr., New Orleans, for Myrtle Cobb, w/o and James Wilson, plaintiffs-appellants.
    C. B. Ogden, II, New Orleans, for New Orleans Public Service, Inc., defendant-ap-pellee-appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a companion case to case #7267, Myrtle Cobb, wife of and James Wilson v. New Orleans Public Service, Inc., decided this day. This suit is brought by plaintiffs as passengers on the New Orleans Public Service bus, which was involved in a collision with a vehicle driven by Mrs. Wilson at the corner of S. Galvez St. and Tulane Avenue. The trial court found negligence on the part of the bus driver, Frank Russo, and since he was in the course and scope of his employment, vicariously upon New Orleans Public Service, Inc. The court also found Mrs. Wilson to be negligent and cast all three defendants in judgment.

We have discussed the facts and the negligence of the defendants in the companion case and we see no necessity to discuss them here.

Suffice it to say that our examination of the record finds ample support for the conclusion of the trial judge that both drivers were negligent and caused the accident complained of. The remaining issue before us is twofold: 1.) Whether the plaintiffs were actually passengers on the bus; and 2.) The amount of damages to be awarded.

The plaintiffs herein are a mother, daughter, and granddaughter, who allege that they boarded the Galvez bus at its starting point at Galvez and Poydras and were passengers at the time of the collision, when the bus reached the Tulane Avenue stop. At that stop, another passenger got on the bus.

In contradiction of the testimony of two of the plaintiffs (the granddaughter was only an infant some 4 months old), the bus driver testified that there were no passengers on his bus from the beginning of his run until the passenger embarked at Tulane Avenue, and that this passenger was the only passenger he had. The passenger who embarked at Tulane Avenue testified that there were no other passengers on the bus, corroborating the testimony of the bus driver. The trial judge noted that he placed no reliance on the testimony of the bus driver, and as we stated in the companion case, we agree with that determination. Nevertheless there is the testimony of the boarding passenger, entirely unrelated to the driver or bus company, who also testified there were no other passengers aboard.

The situation obviously is one of credibility of the witnesses, and the trial judge chose to believe the testimony of the plaintiffs. In support of his finding, we refer to the testimony of the other defendant herein, Mrs. Wilson, who testified that there were indeed more than one passenger on the bus at the time of the collision. The trial judge apparently chose to place more reliance upon the testimony of this defendant, who was actually testifying against her interest, than upon the other passenger, an independent witness. We find no error in this determination. The trial judge is in a better position to assess the weight and sufficiency to be given to the testimony of the witnesses where there are no physical facts to dispute one or the other, and in this case we agree with his decision, that plaintiffs were indeed passengers on the bus.

The other issue in this case is quantum. The infant child, Shermane Robertson, was awarded $250.00 plus medical fee in damages. The record discloses that she suffered no serious injury, but was simply shaken up and became excited and fretful, and suffered some anorexia. The doctor prescribed tranquilizers for the child and there have apparently been no problems since. We affirm the award.

Both Ada Mae Thompson and Landa Hall were thrown back and forth in their seat when the collision took place and both suffered from a strain of the musculature along the lumbar spine. They were treated by Dr. Macaluso who prescribed physiotherapy and analgesics, and both recovered uneventfully. Landa Hall underwent longer treatment than Mrs. Thompson. The trial judge awarded Mrs. Thompson $775.00, plus medical expenses, for her injuries, pain and suffering; and awarded Landa Hall $975.00, plus medical expenses for her injuries, pain and suffering. In relating these awards to the injuries sustained, it appears that they are perhaps lower than the average award for injuries of similar nature, but such damages cannot be fixed with preciseness and are within the discretion of the trial judge. La.Civil Code Art. 1934(3). For us to increase the award granted these two plaintiffs would simply be a substitution of our opinion for that of the trial judge. We find no manifest error in the award.

For the reasons above assigned, the judgment appealed from is affirmed. We, note that all parties appealed in this case, and that in the companion case we assessed costs against Mr. and Mrs. Wilson. Considering the relative positions of the parties on this appeal and in view of our assessment in the companion case, we assess all costs of this appeal against New Orleans Public Service, Inc.

Affirmed.

      . Our opinion and decree in that consolidated case were handed down this day. See 328 So.2d 681.