text:
    Walter Mason KEMBRO, Appellant, v. STATE of Florida, Appellee.
    No. CC-1.
    District Court of Appeal of Florida, First District.
    June 13, 1977.

      Steven E. Rohan, Nachman & Rohan, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

After being found guilty by a jury of burning with intent to defraud an insurer, defendant received a five year prison sentence. On appeal he complains that the trial court erred in limiting cross-examination of a crucial state witness and that the prosecutor improperly commented during closing arguments on his failure to testify.

At trial, the state attempted to establish that appellant had hired Woodrow W. (Doc) Gardner and Edward Eugene (Red) Cohran to burn down a house located in Jacksonville owned by appellant and his wife. Defense counsel, during cross-examination of appellant’s wife, asked leading questions. After the prosecutor objected to defense counsel testifying himself, the trial court informed counsel that she did not want that type of question to be asked again. During a short recess, the trial court admonished defense counsel not to suggest the answer to a question in the question itself. During the cross-examination of state witness Red Cohran, defense counsel attempted to explore the agreement between that witness and the state. When defense counsel asked Cohran if he understood what the maximum sentence was that he could have received, the trial court sustained the prosecutor’s objection to the question and refused defense counsel permission to proffer the testimony. When defense counsel attempted to ask Cohran about specific burglary charges for which the state had recommended concurrent sentences, the prosecutor’s objection was again sustained and the trial court refused to allow defense counsel to proffer the testimony. At the close of all of the evidence, the prosecutor in his closing arguments stated: “Go back in and look at the evidence and look at it hard and look at it closely and I think each of you are going to be satisfied, as I told you in the beginning, in your hearts and in your consciences that the man sitting right there and has continued sitting right there in that chair and has not gotten up here * * Defense counsel objected to the prosecutor’s remarks and moved for a mistrial. The trial court denied both the objection and the motion for mistrial.

Generally, refusal to permit a proffer of testimony is error if the testimony is reasonably related to the issues at trial. See Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976). The trial court in the instant case committed error when she refused defense counsel permission to proffer the testimony sought to be elicited from state witness Cohran. The trial court also erred when she refused to allow defense counsel to ask leading questions. Although counsel is not permitted to testify, he is entitled to utilize the techniques of cross-examination, among which is asking leading questions.

The remarks made by the prosecutor during his closing argument to the jury, above quoted, also constitute reversible error. Comment upon an accused’s failure to testify is prohibited. Shannon v. State, 335 So.2d 5 (Fla.1976). Notwithstanding the attempt by the learned trial judge after the comment was made in the instant case to ameliorate the effect of the prosecutor’s remarks, the remarks were unmistakable in meaning to the jury and prejudicial to appellant. See Smith v. State, 344 So.2d 915 (Fla. 1st DCA 1977); see also Padovano, “Prejudicial Comments of the Prosecutor During Closing Argument”, The Florida Bar Journal, March, 1977, pp. 159-164.

Accordingly, the case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

MILLS and ERVIN, JJ., concur.


source: Caselaw Access Project

author:
ERVIN, Judge.
      BOYER, Chief Judge,

license: Public Domain

text:
    GULF PROPERTIES OF ALABAMA, INC., Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.
    No. DD-299.
    District Court of Appeal of Florida, First District.
    June 13, 1977.
    George P. Daniels of Isler, Higby, Brown, Smoak & Watson, Panama City, for appellant.
    William D. King of Mahoney, Hadlow & Adams, Miami, Thomas Sale, Jr. of Sale, Bryant, Daniel & Thompson, Panama City, and Nathan H. Wilson, Jacksonville, for appellee.
   ERVIN, Judge.

INTRODUCTION

This is an appeal by Gulf Properties from an order dismissing its complaint against Southern Bell with prejudice.

ISSUE

May a dedicator reserve or except the exclusive rights to construct, maintain and operate telephone lines and utilities in the dedication of streets, avenues or alleys?

FACTS

Beginning in 1937, Gulf Properties filed 22 plats for subdivisions known as Laguna Beach and Laguna Beach Estates located in Bay County, Florida. Three of the plats contained exclusive reservations with respect to telephone lines. Another 13 of the plats contained general exceptions for “utility and franchise rights” not specifically referring to telephone lines or services. In 1974, Southern Bell began installing, maintaining and operating underground telephone lines along the streets and avenues indicated on the plats. Gulf Properties filed its complaint in three counts (1) seeking to enjoin Southern Bell from encroaching and trespassing on the streets subject to the exclusive reservation and property rights of Gulf Properties, (2) seeking damages for the conversion of Gulf Properties’ exclusive utility rights and (3) seeking the imposition of a constructive trust upon the proceeds Southern Bell was receiving in violation of Gulf Properties’ rights. Upon motion to dismiss filed by Southern Bell, the court entered an order dismissing with prejudice Gulf Properties’ complaint for failure to state a cause of action. Hence this appeal.

DISPOSITION

We affirm. Southern Bell’s motion to dismiss was grounded primarily upon the provisions of Section 362.01, Florida Statutes (1973), which provides in part:

“To occupy roads. Any telegraph or telephone company chartered by this or another state, or any individual operating or desiring to operate a telegraph or telephone line, or lines, in this state, may erect posts, wires and other fixtures for telegraph or telephone purposes on or beside any public road or highway;

Gulf Properties’ complaint did not allege it was presently operating or was desirous of operating a telephone company. Nor did it allege that it had applied for a certificate by the Florida Public Service Commission as required by Chapter 364 to undertake the operation of a telephone system.

There are no Florida cases directly on point, however we feel that an opinion of the Supreme Court of Texas is highly persuasive authority for the trial court’s dismissal of the complaint. In Roaring Springs Town-Site Co. v. Paducah Telephone Co., 109 Tex. 452, 212 S.W. 147 (1919), the plaintiff reserved the exclusive right to grant the use of streets and alleys and to construct telephone, telegraph and electric wires and poles. A Texas statute declared it to be the public policy of the state that corporations created for the purpose of constructing and maintaining long distance telephone lines were authorized to construct their poles, wires, etc. upon any of the public roads and streets of the state in such a manner as not to inconvenience the public in the use of such roads and streets. The Texas court held that such statute constituted a declaration that the interest of the public to convenient telephone service was superior to any private interest, and held that the plaintiff’s attempt to reserve such rights was inconsistent with the statutory authority and could not be upheld.

Gulf Properties’ reliance upon Jacksonville v. Shaffer, 107 Fla. 367, 144 So. 888 (1932), has no application here. In Shaffer, the dedicators expressly reserved the exclusive right to lay railroad tracks and all the other public utilities in the streets, avenues and alleys dedicated to public use. The City of Jacksonville, through eminent domain, sought an easement to lay its own water lines. The Florida Supreme Court held that the dedicators were entitled to compensation from the city for being divested of their exclusive rights under the dedication. In reaching its decision, however, the court noted that no statute existed — as it does here — which expressly or impliedly prohibited the reservation of such rights.

Another distinguishing feature of Shaffer is that the City of Jacksonville sought to condemn a non-exclusive easement for its own waterworks system for the purpose of laying its own lines and operating the system in competition with the developers’ existing system. There did not exist at the time Shaffer was decided any requirement for governmental regulation of the waterworks system — unlike the situation here in which the Florida Public Service Commission regulates telephone systems.

The order granting the motion to dismiss the complaint with prejudice is affirmed.

MILLS, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge,

specially concurring.

I concur that the learned trial judge properly dismissed appellant’s complaint with prejudice. Florida Statute 362.01 is controlling. It does not, in my view, prohibit the reservation by a dedicator of the exclusive rights to construct, maintain and operate telephone lines and utilities in the dedicated streets, avenues and alleys appearing on the recorded plat. However, any such reservation must of necessity be subject to the express provisions of the statute. Accordingly, appellee and any other telegraph or telephone company chartered by this or any other state, or any individual operating or desiring to operate a telegraph or telephone line, or lines, in this state, may erect posts, wires and other fixtures for telegraph or telephone purposes on or beside any of the dedicated streets, avenues or alleys. The statute has no adverse effect upon the dedicator’s rights to also erect posts, wires and other fixtures for telegraph or telephone purposes on or beside the dedicated streets, avenues and alleys; nor does it have any effect upon the dedicator’s reserved exclusive right to construct, maintain and operate other utilities.

      . Derived from § 6337, Comp. Gen. Laws (1927).


author: SMITH, Judge.

text:
    DUVAL COUNTY SCHOOL BOARD, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Duval Teachers United, FEA-AFT, AFL-CIO, Respondents.
    No. FF-489.
    District Court of Appeal of Florida, First District.
    June 15, 1977.

      Dawson A. McQuaig and Frederick J. Simpson, Jacksonville, for petitioner.
    William Powers, Tallahassee, Gen. Counsel for Public Employees Relations Com’n.
    William H. Maness, Jacksonville, for Du-val Teachers United, FEA-AFT, AFL-CIO.
   ON MOTION FOR STAY

SMITH, Judge.

Petitioner Duval County School Board petitions for review of an order of the Public Employees Relations Commission (PERC) finding the Board committed an unfair labor practice by refusing to bargain in good faith with the labor organization representing its teachers and directing the Board forthwith to bargain in good faith and to post notices that it will do so. Sections 447.503, 120.68, Florida Statutes (1975). The case is not yet submitted on the merits. In the meantime, the petitioning Board moves for an order recognizing the Board’s asserted entitlement, as an agency of a political subdivision of the State, to an automatic stay pending our decision. Fla. App. R. 5.12; Housing Auth. of City of Miami v. Macho, 184 So.2d 916 (Fla.3d DCA 1966); City of Miami Beach v. Lansburgh, 217 So.2d 348 (Fla.3d DCA 1969); City of Miami v. City of Coral Gables, 233 So.2d 7 (Fla.3d DCA 1970).

Rule 5.12’s automatic stay for public agencies conflicts with the Administrative Procedure Act (APA), Section 120.-68(3), and more particularly with the Public Employees’ Relations Act, (PERA), Section 447.503(8), which provides that judicial review shall not stay a PERC unfair labor practice order “unless specifically ordered by the district court of appeal.”

In case of conflict between a statute and court rule in respect to matters of judicial procedure, we are admonished to follow the rule. Bernhardt v. State, 288 So.2d 490 (Fla.1974); State v. Smith, 260 So.2d 489 (Fla.1972). See also Johnson v. State, 308 So.2d 127 (Fla. 1st DCA 1975). Nevertheless we denied the Comptroller a Rule 5.12 stay on his petition under the APA for review of another agency’s action, Lewis v. Career Serv. Comm’n, 332 So.2d 371 (Fla. 1st DCA 1976), and we held a municipality not entitled as of right to a Rule 5.12 stay on review of a PERC order not concerning unfair labor practices. Panama City v. PERC, 333 So.2d 470 (Fla. 1st DCA 1976). In another context we noted that the Florida Appellate Rules were not “designed particularly for review of chapter 120 proceedings,” and that its certiorari procedures were adopted for that purpose by judicial decision. Riley-Field Co. v. Askew, 336 So.2d 383, 384 (Fla. 1st DCA 1976). There we allowed some adjustment of the rules “to better fit the circumstances of administrative review.” Rule 5.12, providing for an automatic stay when a governmental agency “takes an appeal or petitions for certiorari,” was not written in contemplation that an administrative order of one State agency aggrieving another would one day be reviewable by petition for certiorari.

The precedent of our Lewis and Panama City decisions and the reasoning of Riley-Field apply here with greater force. PERC’s unfair labor practice orders will almost always concern, if they do not directly affect, agencies of the State and its subdivisions. The order before us, though it touches the Board with the stigma of an unfair labor practice finding, does no more than require the Board to bargain forthwith in good faith, as PERA already requires, and to announce publicly that it will do so. To recognize an automatic stay in these circumstances would intolerably relieve the Board, during our consideration of the case, of PERA duties independent of the unfair labor practice order. Our ability under Rule 5.12(2) to require a bond of the Board is ineffective to remedy the loss that would occur should we suspend the Board’s obligations under PERA and PERC’s order. We hold that a public employer’s filing of a petition for review of an unfair labor practice order of PERC does not accomplish an automatic stay under Rule 5.12, that any stay which was so accomplished in this case is vacated, and that the Board’s motion for stay is otherwise

DENIED. Consideration of the merits will be expedited.

MILLS, Acting C. J., and ERVIN, J., concur.


author: DENNIS, Justice. PER CURIAM:

text:
    STATE of Louisiana v. John J. BELL et al.
    No. 58880.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rehearing Denied June 17, 1977.

      Samuel Dickens, D. Bert Garraway, Baton Rouge, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

On January 10, 1972, a violent confrontation erupted between police officers and a number of Black Muslim demonstrators, when the officers attempted to clear North Boulevard, a thoroughfare in downtown Baton Rouge, which had been blocked by several parked cars. As a result of the confrontation five men were killed — two sheriff’s deputies and three of the defendants’ alleged co-conspirators. Earlier in the day a television news reporter at the scene had been severely beaten; he remained unconscious on the date of trial of this case.

In response to the incident, a two day citywide curfew was imposed by local authorities, the National Guard was placed on stand-by alert, and certain public officials, including the mayor and the chief of police, issued public statements condemning the violence, calling for swift justice, and urging the exercise of reason and restraint to prevent further racial violence. Expectedly, the incident and the responses it generated were the subject of extensive news media publicity — including some national coverage.

These nine defendants were charged by bill of information with having violated La. Acts 1969, No. 176 (La.R.S. 14:329.1-329.8) by having incited and participated in a riot in which the death of a person occurred. Defendants were brought to trial in April of 1973. At the conclusion of this trial all nine were found guilty as charged and were subsequently sentenced to serve twenty-one years at hard labor. On appeal these convictions and sentences were set aside by this Court on the ground that the trial judge committed prejudicial error by refusing to allow the defendants to produce witnesses and documentary evidence for consideration at the hearing on their motion for a change of venue. State v. Bell, 315 So.2d 307 (La.1975).

Thereafter, in late June and early July of 1976, the defendants were again brought to trial for their alleged violations of La.R.S. 14:329.1-329.8. Renewed efforts on their part to obtain a change of venue were unsuccessful. At the conclusion of this trial the jury of twelve found each of the nine defendants guilty as charged. Each was again sentenced to serve twenty-one years at hard labor, the maximum sentence authorized under the statute.

All defendants have appealed their convictions and sentences, relying on fourteen of fifteen errors assigned in the proceedings below. For the following reasons, we conclude that the assignments presented for our review do not demonstrate reversible error, and consequently we affirm the convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 and 11

By assignment of error number eleven, defendants challenge the ruling of the trial judge allowing the State to introduce into evidence the former testimony of two witnesses, Reed Canada and Warren Hall, which had been adduced at defendants’ first trial in April of 1973. Defendants contend the State failed to make a proper showing, before introduction of the testimony, that the witnesses were unavailable to testify at trial. Conceding in brief that the witnesses were unavailable, defendants seek reversal on the ground that this showing followed, rather than preceded the offering of their former testimony.

Defendants’ contention is not supported by the record. Before the State attempted to introduce the prior testimony of either witness, it called Dr. Hypolite Landry, the East Baton Rouge Parish Coroner, who testified, without objection by the defense, that both Hall and Canada were dead, and that their deaths had been certified by the coroner’s office.

Likewise, defendants’ contention that use of the prior recorded testimony violated their rights of confrontation under the Sixth Amendment to the United States Constitution and under Article I, Section 16 of the 1974 Louisiana Constitution is without merit. See, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Jones, 325 So.2d 235 (La.1976); State v. Sam, 283 So.2d 81 (La.1973). The issues and parties at both trials were identical. Both Hall and Canada were subjected to cross-examination by defendants’ counsel at the first trial; their testimony was, of course, given under oath and recorded verbatim; and, their unavailability for trial was demonstrated.

In presenting the former testimony of witnesses Hall and Canada to the jury, the following procedure was approved by the trial court and used:

East Baton Rouge Parish District Attorney Ossie Brown read the testimony of the deceased witnesses. Questions which had been asked by the prosecutor in the first trial were read by an assistant district attorney, while the former defense attorney’s questions on cross-examination were read by defendants’ present counsel.

Defendants timely objected to this procedure and renew their argument on appeal. They contend that Brown should not have been permitted to read the testimony of the unavailable witnesses, because, due to his position of respect in the community as an elected official, the jury might have been inclined to give greater weight to the testimony than it would otherwise have given. The State replies that the jury was well aware that Brown was not a neutral party, and thus argues that it is unlikely that the jury ascribed undue significance to the testimony.

We note that the trial judge, before the testimony of each absent witness was read, cautioned the jury that Brown was not testifying, but that he was merely reading the testimony of State witnesses who could not be called to testify in person.

The trial judge is vested with wide discretion in controlling the conduct and orderly process of trial. La.C.Cr.P. art. 17. We agree with defendants that the more desirable procedure would have been to have a neutral party read the prior testimony of the deceased witnesses, but we are not prepared to say that the procedure utilized below amounted to an abuse of discretion or a substantial violation of defendants’ constitutional rights.

Assignments of error numbers one and eleven do not demonstrate grounds for reversal of defendants’ convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 2, 3 and 4

In these assignments defendants complain of rulings of the trial judge allowing two State witnesses to relate certain statements allegedly made by Samuel Upton, identified by other witnesses as the leader of the Muslims gathered on North Boulevard that day, at the scene of the incident and shortly before the violence erupted. The basis of defendants’ objection is that the testimony was inadmissible hearsay.

John P. Boss, chief photographer for a Baton Rouge newspaper, was at the scene of the riot for some thirty minutes, from approximately 11:45 a.m. until 12:15 p.m. In response to his inquiries about what was going on, he was directed to Samuel Upton, who allegedly informed him that a “confrontation” with local authorities was planned. When the photographer informed Upton that he intended to take some pictures, Upton, according to Boss, remarked: “ * * * I don’t care what you do, . you probably won’t get out of here anyway. * * *”

Maurice Cockerham, a television news editor, testified that he heard Upton speaking to a gathering crowd from the roof of a car which had been used to block North Boulevard. According to this witness, Upton “referred to whites as white devils and as serpents and made several references to killing whites, . . . that their teachings required that they kill whites. * * ” Upton told the crowd, “we’ll meet the white devil here today and kill him. * * * ” He then turned and pointed at the witness and two other newsmen saying, “there are three of the devils here now, but there’ll be more later.” Cockerham estimated that these remarks were made at approximately 12:30 p.m. Shortly thereafter, the newsmen were set upon by the crowd, and one, who was unable to escape, was severely beaten. Within minutes the confrontation between the authorities and the crowd occurred, leaving five men dead.

Defendants claim that the trial judge’s rulings admitting these statements, attributed to Samuel Upton, who was neither on trial nor present to testify, violated the rule against hearsay evidence, and deprived the defendants of substantial rights.

La.R.S. 15:434 provides:

“Hearsay evidence is inadmissible, except as otherwise provided in this Code.”

One of the exceptions to the hearsay ban contemplated by this provision is set forth in La.R.S. 15:447:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.” (Emphasis supplied.)

The definition of res gestae is narrowed by the language of La.R.S. 15:448, which provides:

“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

The inflammatory statements allegedly made by Upton and related by Cockerham were directed to a gathering crowd. They immediately preceded the outbreak of violence, and were, in our view, necessary incidents of the criminal acts forming the basis of the charges against the defendants—inciting and participating in a riot. Upton’s role as a participant in the crime was clearly established. Thus, the hearsay statements testified to by Cocker-ham constitute part of the res gestae of the crime, and were therefore properly admitted.

We cannot, however, conclude that Upton’s comments to Boss were part of the res gestae of the crime. These statements do not appear to have been made to the crowd generally, in an effort to inflame the passions of the crowd and to provoke lawless action, but rather to Boss alone. While they tended to show Upton’s present state of mind, and his formulated intent to provoke a violent confrontation, they were not, properly speaking, incident to the crime. Nevertheless, we conclude that the statements were properly admitted by the trial court, on the authority of the evidentiary rule embodied in La.R.S. 15:455, which provides:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

A prima facie case of conspiracy between Upton and defendants to incite a riot was established by independent evidence. The State introduced evidence other than Upton’s remarks in its case in chief which showed more probably than not such a conspiracy existed. Accordingly, the State was entitled to utilize the evidentiary rule expressed in section 455 of Title 15. State v. Bennett, 341 So.2d 847 (La.1977); State v. Shepherd, 332 So.2d 228 (La.1976); State v. Kaufman, 331 So.2d 16 (La.1976); State v. Brown, 326 So.2d 839 (La.1976). See also, State v. Brumfield, 329 So.2d 181 (La.1976); McCormick, Evidence, § 267, 639-47 (2d ed. 1972). Of course, had the State had not shown that it was more probable than not that the defendants were engaged in a conspiracy with Samuel Upton to provoke and participate in a violent confrontation with the East Baton Rouge Parish authorities, then Upton’s statements to Boss would have been inadmissible hearsay.

For the foregoing reasons, assignments of error numbers two, three and four are without merit.

ASSIGNMENTS OF ERROR NOS. 5 and 6

In these assignments of error the defendants contend that the trial court improperly tolerated violations of its sequestration order.

Among the motions filed by defendants prior to trial were motions for change of venue and to recuse the East Baton Rouge Parish District Attorney, Ossie Brown, and his staff. In connection with both of these motions, Brown was called to testify as a witness.

After the opening statements at the trial on the merits, defendants, through counsel, requested the “sequestration of all witnesses,” see, La.C.Cr.P. art. 764, and the court entered the order. In assignment of error number five defendants complain that the trial court erred in refusing to order District Attorney Brown out of the courtroom. They contend that he should have been excluded because he had previously been called as a witness and placed under the rule of sequestration at the hearings on the motions to recuse and to change venue.

Defendants’ argument lacks any merit. The district attorney took an active part in prosecuting the defendants; he was not called as a witness at the trial on the merits. His appearance as a witness in conjunction with certain pre-trial motions did not render him subject to the sequestration order entered at the beginning of the trial on the merits.

Defendants complain, in assignment of error number six, that the trial court should not have permitted television news reporter Henry Baptiste to testify in behalf of the State, because Baptiste had been present in the courtroom on the first day of trial.

Despite the fact that Baptiste had been present in his capacity as a news reporter at the crime scene on January 10, 1972, the State had not planned to call him as a witness at trial. Thus he was not placed under the court’s initial order of sequestration. On the third day of trial, however, the State determined that his testimony was needed, and called him as a witness. Defendants timely objected, asking the trial' court to exclude his testimony because he had been in the courtroom on the first day of trial “covering the story” as a newsman. Defendants’ objection was overruled.

La.C.Cr.P. art. 764 provides:

“Upon its own motion the court may, and upon the request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

This article vests, in the sound discretion of the trial judge, the authority to disqualify a witness who has violated the sequestration order; it does not compel disqualification. See, Official Revision Comment (b) of Article 764; State v. McDaniel, 340 So.2d 242 (La.1976); State v. Bias, 337 So.2d 426 (La. 1976); State v. Holmes, 305 So.2d 409 (La. 1974); State v. McKinney, 302 So.2d 917 (La.1974); State v. Lewis, 288 So.2d 324 (La.1974).

In State v. Batts, 324 So.2d 415 (La.1975), this Court found no abuse of discretion where the trial judge allowed testimony from a witness whom the State had no reason to anticipate calling at the beginning of trial, despite the presence of that witness in the courtroom during the taking of earlier testimony.

The rule of sequestration is intended to insure that a witness will testify on the basis of his own knowledge of the case without being influenced by the testimony of other witnesses, and to strengthen the utility of cross-examination in developing the facts. State v. McDaniel, supra; State v. Bias, supra; State v. Batts, supra. In the instant case the trial judge acknowledged that Baptiste had been “in and out” of the courtroom in the first day of trial, but he added the observation, “I don’t remember Mr. Baptiste staying for any appreciable length of time.” The trial judge, in overruling defendants’ objection, was apparently of the view that Baptiste’s sporadic exposure to the testimony given on the first day of trial was not sufficient materially to affect his testimony as a witness, or to undermine the defendants’ ability to cross-examine him effectively.

Defendants have failed to demonstrate that the judge’s ruling allowing Baptiste to testify amounted to an abuse of discretion.

Assignments of error numbers five and six are without merit.

ASSIGNMENT OF ERROR NO. 7

In this assignment of error defendants complain of the trial judge’s refusal to grant a change of venue to avoid the effects of the extensive publicity which attended the incident and the defendants’ first trial.

In a trial held in April of 1973, defendants were convicted of inciting and participating in a riot in which the death of a person occurred. Their convictions were reversed by this Court because the trial court refused to allow the defendants to introduce evidence in support of their motion at the hearing on the requested venue change. State v. Bell, 315 So.2d 307 (La. 1975).

After our reversal, and prior to retrial, defendants renewed their request for a change of venue, claiming that the extensive publicity which attended the incident and the first trial had so prejudiced the public’s mind that a fair trial was impossible. Upon remand, at the second hearing on the requested venue change, the trial judge listened to the testimony of fifteen witnesses and reviewed numerous newspaper and magazine clippings offered by the defendants in support of their motion.

Defendants’ witnesses, and particularly those from the news media, testified that news coverage of the incident and its immediate aftermath was extensive, and that the general public seemed quite aroused and racially divided at the time. Many testified that the incident itself had received some national television and press coverage. Publicity of the first trial, according to the witnesses, was considerable, but most agreed that it was not as extensive as that which had attended the incident itself. Many of the witnesses expressed their view that the community remained highly aware of and divided by the events at the time of defendants’ first trial. The witnesses generally agreed that since the end of the first trial in 1973, publicity concerning the case had been sporadic and more restrained.

When asked whether, in view of their present evaluation of community sentiment, they felt that the defendants could, in mid-1976, obtain a fair trial in East Baton Rouge Parish, more than two-thirds of the witnesses testified that they could. On the basis of the evidence offered by the defendants at the hearing on the motion for change of venue, the trial judge rejected defendants’ request, apparently concluding that defendants had failed to carry their burden of proof. The judge qualified his denial, however, reserving to the defendants the right to re-urge the motion in the event jury selection became too difficult.

To be entitled to a change of venue, the defendant must prove that there is such prejudice in the collective mind of the community that a fair trial is impossible. La.C.Cr.P. art. 622; State v. Smith, 340 So.2d 222 (La.1976); State v. Clark, 340 So.2d 208 (La.1976); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Berry, 329 So.2d 728 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Dupuy, 319 So.2d 294 (La.1975). Whether the defendant has made the requisite showing is a question addressed to the sound discretion of the trial court. State v. Clark, supra; State v. Berry, supra; State v. Wilkerson, 326 So.2d 353 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976).

In State v. Bell, 315 So.2d 307 (La.1975), we set forth the following factors to be considered in determining whether to change venue:

«* * * (i) [T]he 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.” 315 So.2d at 311.

Other factors we have indicated are relevant to this inquiry 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).” State v. Berry, supra, at 730.

In considering whether the defendants demonstrated an abuse of discretion in the trial court’s ruling denying the requested venue change, we have tested the evidence adduced at the hearing on the motion for change of venue, and the testimony of the prospective jurors on voir dire against the particular factors enumerated in Bell and Berry.

There is no doubt the publicity surrounding the incident and the defendants’ first trial was extensive, and that to some extent, public officials participated in the initial dissemination of that publicity. Nevertheless, a substantial majority of defendants’ witnesses testified at the hearing, that during the passage of time a considerable change had occurred in the feelings and attitudes in the community favoring a fair trial for defendants in East Baton Rouge Parish. The defendants’ second trial was held some four and one-half years after the incident, and some three and one-quarter years after their first trial.

As the public attitudes mellowed, the divisive influences likely to prevent the truthful response of prospective jurors on voir dire correspondingly diminished. To select the twelve member jury in this case, four hundred fifty-six prospective jurors were called and examined on voir dire. Of these, two hundred fifty-two were excused for cause by the trial judge. Ninety were peremptorily challenged by the State; and one hundred two were challenged peremptorily by the defense. Neither the State nor the defense exhausted its peremptory challenges.

Of the two hundred fifty-two jurors challenged for cause, and excused by the trial judge, one hundred fifty-four were excused because they indicated they had a fixed opinion in the case, or because they expressed some doubt about whether they could put any past publicity out of their minds. The remaining jurors excused by the trial judge for cause, were dismissed because of their failure to meet the statutory qualifications; for medical or physical reasons; because of their acquaintance, relation or friendship with the parties involved; because of their professed inability to understand and apply the law; for religious reasons; and the like.

After considering the foregoing, we are unable to conclude that the trial court’s refusal to grant a change of venue amounted to an abuse of discretion. Thus, assignment of error number seven is without merit.

ASSIGNMENT OF ERROR NO. 8

In this assignment of error defendants contend they were denied effective assistance of counsel by the trial judge’s refusal to grant their motion for appointment of additional counsel. Three attorneys were originally appointed to represent the nine defendants in the instant proceedings, but one was allowed to withdraw because his responsibilities with the Baton Rouge Legal Aid Society foreclosed his service as defense counsel. Thus, two attorneys represented the nine defendants in the proceedings below.

At the 1973 trial, the defendants had only two attorneys actively participating in the trial, but counsel had the assistance of an additional attorney standing by in the courtroom, as well as the aid of the investigatory staff of the now defunct Office of Public Defender. Defense counsel argue that they are both essentially solo practitioners, that the representation of the nine defendants herein has placed considerable financial and personal strain upon them, and that, as a result, their representation of the defendants was not what it might have been had additional counsel been appointed.

In denying the request for additional counsel, the trial judge pointed out that counsel had the benefit of a transcript of the entire 1973 trial. They thus had advance notice of the witnesses who would be called, the testimony they would give, and the full extent of the State’s case. With all the information from the first trial available, counsel’s task of preparation was greatly simplified, and much of the investigation in the case was complete.

Because defendants have not pointed to any specific prejudice resulting from the trial court’s ruling, reversible error has not been shown.

ASSIGNMENTS OF ERROR NOS. 9 and 10

These assignments of error relate to rulings of the trial court refusing to grant defendants’ motions to recuse the East Baton Rouge Parish District Attorney and his staff, and the trial judge.

Defendants moved to recuse the entire East Baton Rouge Parish District Attorney’s Office because one of the attorneys who represented the defendants at their first trial had since joined the district attorney’s staff as an assistant. Additionally, other members of the district attorney’s staff had worked for the Office of Public Defender while it was handling the defendants’ case.

Defendants acknowledge in brief that they were unable, at the hearing on the motion to recuse, to prove that any confidential information was passed to the district attorney, or to those on his staff handling the prosecution, by persons privy to privileged matter. Nevertheless, in their ninth assignment of error, they complain of the ruling of the trial judge denying their motion.

This assignment of error is without merit. In State v. Brown, 274 So.2d 381 (La.1973), this Court, considering substantially the same question as that presented herein, held:

“The mere fact that an assistant district attorney previously represented an accused does not ipso facto require disqualification of the District Attorney in the criminal proceeding. Especially, as here, where the Assistant District Attorney was not called upon to use against his former client any confidential knowledge gained through their former association, no prejudice could result to the accused.
“In the instant case, defendant has failed to provide any proof, beyond the bare allegation, that the District Attorney based the prosecution of the defendant on any facts wholly or partially acquired through the Assistant District Attorney’s prior professional relation as the defendant’s attorney. The motion merely advanced the conclusion that the Assistant District Attorney’s employment by the District Attorney was prejudicial to the defendant and on that account the defendant believed he could not receive a fair trial. Such a conclusionary statement did not require the trial court to recuse the District Attorney.” 274 So.2d at 382.

The language quoted is applicable in the instant case. See also, State v. Brazile, 231 La. 90, 90 So.2d 789 (1956).

Also prior to their second trial, defendants filed a motion to recuse the trial judge, alleging that he was biased and prejudiced against them, having served as trial judge in the first trial and made rulings unfavorable to them, and further that, because the convictions obtained at the first trial were reversed, he would tend to be even more biased and prejudiced against the defendants in the second trial. In their tenth assignment of error defendants contend the trial court erred in denying this motion sua sponte, without referring it to another judge for hearing.

La.C.Cr.P. art. 671 provides inter alia:

“In a criminal case a judge of any court, trial or appellate, shall be recused when he:
“(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial; * *

La.C.Cr.P. art. 674 provides:

“A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recu-sation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.” (Emphasis supplied.)

According to the jurisprudence interpreting these articles, a motion to re-cuse a trial judge must be based on more than mere general conclusory allegations. State v. Maduell, 326 So.2d 820 (La.1976); State v. Collins, 288 So.2d 602 (La.1974). The motion for recusation must set forth allegations of fact which state a statutory cause for recusation before the trial judge is required to refer the motion to another judge. State v. Collins, supra. The mere fact that a judge has presided over prior criminal proceedings involving the same defendants does not alone establish that the judge has developed bias or prejudice to such an extent that he will be unable to conduct a fair and impartial trial. State v. Navarre, 292 So.2d 210 (La.1974).

We find that defendants’ motion contained mere conclusory allegations. Defendants pointed to no particular words or conduct demonstrating bias or prejudice on the part of the trial judge. The trial judge was correct in dismissing the motion without referring the matter to another judge.

Assignments of error numbers nine and ten do not have merit.

ASSIGNMENTS OF ERROR NOS. 1 (filed May 29, 1975), 12 and 13

In these assignments of error defendants challenge the trial judge’s ruling denying their motion to quash the bill of information charging them with having violated La.R.S. 14:329.1-329.8.

On February 10, 1972, these defendants, and others, were charged by grand jury indictment with murder. Under the terms of La.C.Cr.P. art. 578, the State then had three years to commence trial on these charges, unless the prescriptive period was extended for one of the causes enumerated by La.C.Cr.P. art. 579.

Thereafter, before the time limitations had run for institution of prosecution, as set forth in La.C.Cr.P. art. 572, the State charged the defendants by bill of information with inciting and participating in a riot in which the death of a person occurs. La. R.S. 14:329.1-329.8. The State timely commenced trial on these charges in April of 1973. Defendants were convicted but on appeal their convictions were reversed, and the cause was remanded for a new trial. Under the terms of La.C.Cr.P. art. 582, the State had to commence the new trial within two years of the reversal.

During this time the State took no action with respect to the murder. indictment which had been handed down on February 10, 1972. In March of 1976, defendants filed a motion to quash that indictment, alleging that the time limit for commencement of trial as set forth in La.C.Cr.P. art. 578 had expired. Ultimately the trial judge granted defendants’ motion to quash the murder indictment.

Thereupon, the defendants filed a motion to quash the bill of information in the instant case, arguing that La.C.Cr.P. art. 581 barred further prosecution by the State. La.C.Cr.P. art. 581 provides:

“Upon the expiration of the limitations established by this Chapter, the court shall, upon motion of the defendant, dismiss the indictment. This right of dismissal is waived unless the motion to quash is made prior to trial.
“If the indictment is dismissed under this article, there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts.” (Emphasis supplied.)

Defendants’ motion to quash the instant information was denied by the trial court and the matter proceeded to trial. The defendants were convicted and this appeal followed.

Defendants contend that criminal laws, including procedural statutes, are stricti juris and that the second paragraph of Article 581 should be construed to bar further prosecution for any “lesser” offense based on the same facts. They argue that the present information charges them with a “lesser offense” which is based on the same facts as the murder charge, which the trial court quashed.

However, the State applied for writs from the trial court’s ruling quashing the murder indictment. We granted writs, vacated the judgment, and remanded for an evidentiary hearing. See, State v. Bell, 337 So.2d 224 (La.1976). Both the State and the defense concede that on remand the trial judge directed the State to resubmit the matter to the East Baton Rouge Parish Grand Jury. The Grand Jury then returned a “no true bill” against each defendant.

As we recently construed Article 581, it prohibits reprosecution for the same or a lesser offense based on the same facts, after an indictment is quashed because trial was not timely commenced. See, State v. Powers, 344 So.2d 1049 (La. 1977). The information upon which the present convictions are based was not filed after the murder indictment was “quashed.” The facts demonstrate rather clearly that the State has not attempted to circumvent the time limits fixed for commencement of trial.

Accordingly, we find no merit in these assignments of error.

For the foregoing reasons, defendants’ convictions and sentences are affirmed.

On Application for Rehearing

PER CURIAM:

The single contention posed by the defendants’ application for rehearing relates to a factual error in our original opinion. Therein, we stated that District Attorney Ossie Brown was not called as a witness at the trial on the merits.

In fact, the district attorney was called as a witness. He had previously read to the jury the prior recorded testimony of two deceased witnesses, and he was called by the State to verify that one of those witnesses had made an in-court identification of the defendants at the former trial. On cross-examination, the district attorney was asked about the mental condition of one of the deceased witnesses, and whether the other had a prior criminal record.

None of the district attorney’s testimony related to the merits of the State’s case against the defendants.

Further, his brief testimony was not of a character to be affected in any way by his presence and participation in defendants’ trial. Thus, defendants suffered no prejudice from the ruling of the trial court refusing to exclude the district attorney from the courtroom.

The conclusion reached in our original opinion that defendants’ assignment of error was without merit is correct.

Accordingly, defendants’ application for rehearing is denied.

Rehearing denied.

      . La.R.S. 14:329.1-3, 329.7 provide:
      “A. A riot is a public disturbance involving an assemblage of three or more persons acting together or in concert which by tumultuous and violent conduct, or the imminent threat of tumultuous and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.
      “Inciting to riot is the endeavor by any person, to incite or procure any other person to create or participate in a riot.
      “Any law enforcement or peace officer or public official responsible for keeping the peace may issue a command to disperse under the authority of R.S. 14:329.1-14:329.8 if he reasonably believes that riot is occurring or about to occur. The command to disperse shall be given in a manner reasonably calculated to be communicated to the assemblage.
      “Whoever willfully fails to comply with a lawful command to disperse shall be punished in accordance with the provisions of R.S. 14:329.7.
      “A. Whoever willfully is the offender or participates in a riot, or is guilty of inciting a riot, or who fails to comply with a lawful command to disperse, or who is guilty of wrongful use of public property, or violates any other provision hereof shall be fined not more than five hundred dollars or be imprisoned not more than six months, or both.
      “B. Where as a result of any willful violation of the provisions of R.S. 14:329.1-14:329.8 there is any serious bodily injury or any property damage in excess of five thousand dollars, such offender shall be imprisoned at hard labor for not more than five years.
      “C. Where, as a result of any willful violation of the provisions of R.S. 14:329.1-14:329.8, the death of any person occurs, such offender shall be imprisoned at hard labor for not to exceed twenty-one years.”

      . Defendants, through counsel, perfected two assignments of error on May 29, 1975. Thereafter, on October 29, 1976, they perfected thirteen additional assignments of error. Assignment number one, filed May 29, 1975, is substantially identical to assignment number twelve, filed October 29, 1976, and they will be treated as one for purposes of this opinion.
      In assignment number two, filed May 29, 1975, defendants urged that the trial court committed reversible error in denying defendants’ motion for “Reasonable Bond” pending trial. The assignment is clearly without merit in the context of a post-conviction appeal. See, State v. Jones, 332 So.2d 267 (La.1976). Further, this assignment of error, having been neither briefed nor argued in this Court, is deemed abandoned. State v. Phillips, 337 So.2d 1157 (La.1976).

      . From the testimony of John Boss:
      “ * * * I asked him [Upton], uh, what was going on, was it a demonstration, and he says, no, it is not a demonstration, it’s a confrontation. I said, with who? And he said, with the chief of police, the mayor, the other city officials.”

      . Upton was one of the Black Muslims killed in the outbreak of violence.

      . At the hearing on the motion for change of venue in the 1973 trial of this matter, the trial judge based his ruling denying the venue change on a “dry run” voir dire examination in which fifty-seven prospective jurors were examined. Defense counsel at that time acquiesced in the procedure used by the trial court, but reserved the right to produce evidence in the event the trial judge concluded, at the end of the “dry run” examination, that the requested venue change would not be granted. After the potential jurors had been questioned, the trial judge denied the application for change of venue, and over strenuous objection refused to consider any further evidence which defendants offered to produce.
      In reversing the convictions, a majority of this Court concluded that the trial judge’s ruling precluded a determination of whether there were influences in the community which would make it impossible to obtain a fair trial notwithstanding the fact that jurors could be found who were not subject to challenges for cause.

      . At the hearing on the motion for change of venue defendants called fifteen witnesses, including representatives of all three Baton Rouge television stations; the two major newspapers; and two radio stations; public officials; leaders of political activist groups, both black and white; and several attorneys.

      . Defendants did renew their motion for a change of venue on the fifth day of voir dire, and after ten jurors had been selected and sworn. Their motion was overruled by the trial judge, and their objection noted.


author: PER CURIAM.

text:
    STATE of Louisiana v. Willie ALEXANDER, Jr.
    No. 59202.
    Supreme Court of Louisiana.
    May 25, 1977.
    Rehearing Denied June 17, 1977.
    Brian Begue, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant in the instant case was sentenced to serve one hundred (100) years at hard labor. However, under the provisions of La.R.S. 15:529.1(A)(3), a defendant convicted of simple burglary in violation of La.R.S. 14:62 and found to be a fourth or subsequent felony offender is appropriately sentenced to not less than twenty (20) years and not more than his natural life.

Defendant’s conviction is affirmed, but his sentence is annulled and set aside. The case is remanded to the lower court for resentencing in accordance with the law and views herein expressed.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Charles MINOR.
    No. 59249.
    Supreme Court of Louisiana.
    May 25, 1977.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Charles Minor was charged with an attempted simple burglary which took place on August 6, 1976 in New Orleans, Louisiana. At arraignment he entered a plea of guilty as charged. Subsequently he was charged with being a habitual offender under the provisions of Louisiana Revised Statute 15:529.1. He was found to be a multiple offender by the court, and sentenced as such to twenty years at hard labor with credit for time served. Defendant has appealed his conviction and sentence, asking in his single assignment of error that the Court review the multiple offender proceeding.

Defendant’s assignment presents nothing for review except errors discoverable by an inspection of the pleadings and proceedings. C.Cr.P. arts. 841, 920; State v. Spain, 329 So.2d 178 (La.1976); State v. Husband, 320 So.2d 199 (La.1975). We have reviewed the record, particularly that of the habitual offender proceeding, and find no error.

In a letter addressed to the trial judge, defendant Minor indicated that at the time he pled guilty to the charge of attempted simple burglary he was not aware of the fact that he could be charged as a habitual offender and could receive an enhanced penalty. Should defendant wish to pursue this allegation, his proper route is through application for writ of habeas corpus.

For these reasons, defendant’s conviction and sentence are affirmed.


author: SANDERS, C. J., TATE, J.,

text:
    In re APPLICATION of Roberto R. ALEMAN, Jr.
    No. 59955.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Roberto R. Aleman, Jr., applying for permission to take the bar examination.

Considering that applicant is not requesting admission to the Louisiana bar but merely the opportunity to take the bar examination and test his knowledge of La. law, this, application, is denied.

SANDERS, C. J.,

concurs in the denial of the application on. the ground applicant is not a resident alien as required by Article XIV, §. 7(B)(c) of the Articles of Incorporation of State Bar.

SUMMERS, J., concurs, in the denial for the reasons stated by the Chief Justice.

TATE, J.,

dissents. As in In re de Alba, 312 So.2d 867 (La., 1975), I see no good reason why the present applicant should not be permitted to take the bar examination for which he prepared by a course of studies at a Louisiana law school. Formerly I was of the opinion that by the amendment of our rules we intended to permit aliens who were residing in Louisiana to take our bar examination, if otherwise qualified (assuming that the issue of eligibility for admission to the bar is before us — in fact, the only issue before us is whether the applicant should be permitted to take the bar examination) by'our rules.

DIXON, J., concurs in the denial.

MARCUS, J., concurs in the denial.


text:
    STATE of Louisiana v. Robert H. GILMORE, d/b/a Gilmore’s Newsstand.
    No. 59826.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Robert H. Gilmore, d/b/a Gilmore’s Newsstand and Shreveport News* Agency, Inc. applying for supervisory writ.

Writ refused. There is no such irreparable injury shown as to justify the exercise of our supervisory jurisdiction.

DIXON, J., is of the opinion the writ should be granted.

CALOGERO, J., is of the opinion the writ should, be granted.

DENNIS, J., is of the opinion the writ should be granted'.


author:
DIXON, J.,
      DENNIS, J.,

text:
    STATE of Louisiana v. John T. LUCK, d/b/a Tommy’s News.
    No. 59827.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: John T. Luck, d/b/a Tommy’s News and Shreveport News Agency, Inc. applying for supervisory writs.

Writ refused. There is no such irreparable injury shown as to justify the exercise of our supervisory jurisdiction.

DIXON, J.,

is of the opinion that if this is a criminal proceeding, it has abated with the death of the defendant Luck. If not, the writ should be granted.

CALOGERO, J., is of the opinion the writ should be granted.

DENNIS, J.,

is of the opinion that upon the death of the defendant Luck all proceedings in this prosecution abated from its inception, State v. Morris, 328 So.2d 65 (La.1976), and that there is no authority for a third party to intervene in a criminal proceeding.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Leonard BROWN v. Ross MAGGIO, Jr., Warden La. State Penitentiary.
    No. 59915.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Leonard Brown, applying for supervisory and remedial writs.

Writ denied. The alleged errors, if reversible at all, should have been raised upon the appeal.

DIXON, J.,

dissents from denial; the La. Constitution gives defendant a right to review the excessive sentence. It has not been reviewed. Defendant was represented on appeal by O.I.D.P., and cannot be said to have waived any right.


text:
    STATE of Louisiana v. Linda DICKERSON.
    No. 59939.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Linda Dickerson, applying for supervisory and remedial writs and for Stay Order.

Writ refused. The double jeopardy issue referred to in this application cannot be resolved on appeal because additional evidence will be required. Nor has the issue of double jeopardy been raised in trial court. Hence, the application has no merit.

DIXON, J.,

concurs. No application for writs of habeas corpus has been filed. Upon proper application defendant will be entitled to transcript of 1st trial.


text:
    Succession of Hubert BURAS (Burat).
    No. 59949.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re:. The Board of Levee Commissioners of the Orleans Levee District, applying for supervisory writs.

Writ denied. There is no error in the ruling complained of.

CALOGERO, J., recused.


author: SUMMERS, J.,

text:
    HOSPITAL SERVICE DISTRICT NO. 2 OF ST. LANDRY PARISH, Louisiana v. Frank DEAN et al.
    No. 59952.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re Florence Joseph Sliman et al. applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 234, Third Circuit, Parish of St. Landry.

Writ denied. No error of Law.

SUMMERS, J.,

dissents from the refusal of this application, being of the opinion the rationale of the decision in Gremillion v. Rapides Parish School Board, 134 So.2d 700 (La.App.1961) upon which the Court of Appeal decision is based does not comply with the letter or spirit of Article I, § 4 of the Louisiana Constitution of 1974.

DENNIS, J., would grant the writ.


author: SUMMERS, J., TATE and MARCUS, JJ. DIXON, J.,

text:
    STATE of Louisiana v. Lonnie G. RAYBON.
    No. 59954.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Lonnie G. Raybon applying for writ of certiorari, mandamus, prohibition and review.

Writ refused. On the circumstances shown, relator is not entitled to the relief sought.

SUMMERS, J.,

concurs in denial. In my view it is implicit from this record that at the time of the guilty plea applicant was aware of the consequences of his plea and that the plea was knowingly and voluntarily made. The law requires no more.

TATE and MARCUS, JJ.

We are not convinced that the trial court erred in the holding, on the basis of the evidentiary hearing, that the record establishes that the state bore its burden of proving an intelligent and knowing plea of guilty. Nevertheless, we feel that the present protracted post-conviction proceeding supports reiteration of the principal that the preferred procedure under the present circumstances is for the trial court to ascertain independently at the time of the plea that the accused is aware of the rights he relinquishes by his plea and of the consequences thereof.

DIXON, J.,

dissents from the denial. The record establishes that neither the judge nor the lawyer informed applicant of the rights he waived by pleading guilty, and the record does not establish that applicant knew he could demand a trial. The record does establish that he steadfastly maintained his innocence, and does not establish that he knew the minimum sentence was a jail term.

CALOGERO, J., is of the opinion the writ should be granted.

DENNIS, J., would grant the writ.


author: SUMMERS, J., TATE, J.,

text:
    STATE of Louisiana v. Emil BUFALO.
    No. 59956.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Emil Bufalo, applying for certiora-ri and mandamus.

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

SUMMERS, J.,

is of the opinion the writ should be granted to clarify and correct irreconcilable differences in the decisions of this Court. See Monroe v. Wilhite, 255 La. 838, 233 So.2d 535 (1970) and State v. McCarroll, 337 So.2d 475 (La.1976) La. Const. Art. I, § 17 (1974).

TATE, J.,

is of the opinion the writ should be granted to clarify whether a “case” in which possible punishment of six months or over requires a jury trial applies not only to joinder of charges in a single indictment, State v. McCarroll, but also to separate indictments consolidated for trial upon the defendant’s motion (which may operate as a waiver of any right to jury trial otherwise applicable.)

DENNIS, J., dissents from the writ denial.


text:
    STATE of Louisiana ex rel. Forrest HAMMOND v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 59986.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Forrest Hammond applying for remedial writ of certiorari.

Writ refused. The main contention made here was rejected in the relator’s prior application. See State ex rel. Hammond v. Henderson, La., 338 So.2d 301. In all other respects, the application is without merit.

DENNIS, J., is of the opinion that the writ should be granted and an evidentiary hearing ordered.


text:
    STATE of Louisiana v. Joseph V. BONANNO, Roy J. Dorman, Jr., John J. Mathison.
    No. 60041.
    Supreme Court of Louisiana.
    June 14, 1977.
   In re: Joseph V. Bonanno, Roy J. Dorman, Jr., John J. Mathison applying for writs of certiorari, prohibition, mandamus and stay order.

Writ granted. On the showing made, the bail is reduced to $50,000. for each defendant.

SUMMERS, J., dissents from reduction of bail bond.


text:
    STATE of Louisiana v. Roy Edward SEGERS.
    No. 60055.
    Supreme Court of Louisiana.
    June 14, 1977.
   In re: Roy Edward Segers applying for remedial writs of certiorari, prohibition and mandamus.

Writ granted. Ruling of trial judge denying bail pending finality of conviction is set aside. Matter remanded to trial judge for a hearing on bail pending appeal according to law.

SUMMERS, J., dissents from the granting of this writ finding no abuse of discretion in the ruling of the trial judge.


text:
    Jack R. COURSHON, as Nominee of the Trustees of First Mortgage Investors v. TIL, d/b/a Spanish Villa Apartments of Monroe, et al.
    No. 59944.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Jesse H. Heard Constr. Inc., et al., applying for certiorari, or writ of review, to the Court of Appeal, 344 So.2d 719, Second Circuit, Parish of Ouachita.

Writ denied. We cannot say that the court of appeal’s interpretation of the statute is in error. The matter may address itself to the legislature.

DIXON, J.,

dissents from the denial, being of the opinion that the interpretation of R.S. 9:4801(C) by the court of appeal is erroneous, and should be corrected either by this court or by the legislature.

CALOGERO, J., is of the opinion the writ should be granted.

DENNIS, J., would grant the writ to afford a full consideration of the issues of law presented.


author: SUMMERS, J., DIXON, J.,

text:
    STATE of Louisiana v. Terry L. DENMAN.
    No. 60049.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Terry L. Denman, applying for writs of certiorari, prohibition and mandamus.

Writ denied in part; granted in part. Ruling of trial judge finding probable cause at preliminary examination is correct; however, trial judge is ordered to conduct a bail hearing in accordance with La.Code.Crim.P. Art. 313.

SUMMERS, J.,

while I agree that the trial judge correctly found probable cause at the preliminary examination, I dissent from the order requiring a hearing in accordance with Article 313 of the Code of Criminal Procedure in this case where applicant is charged with a capital crime. There was no abuse of discretion on the part of the trial judge in refusing bail in this case.

DIXON, J.,

would deny; on the evidence adduced at the preliminary hearing, it was within the discretion of the trial judge to deny bail, since he could reasonably find that the presumption was strong and the proof was great.


text:
    Joan CAPDEVIELLE, wife of Curtis R. Boisfontaine v. Curtis R. BOISFONTAINE.
    No. 60048.
    Supreme Court of Louisiana.
    June 17, 1977.
   In re: Curtis R. Boisfontaine applying for writs of certiorari, prohibition and mandamus.

Writ Denied: Inadequate showing that supervisory relief should be afforded instead of the appellate review allowed by law.

SUMMERS, J., is of the opinion the writ should be granted.

CALOGERO, J., dissents from writ denial.


author: LEMMON, Judge.

text:
    Catherine BENJAMIN and Fred Benjamin v. NATIONAL SUPER MARKETS, INC.
    No. 8703.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 20, 1977.
    Gerald P. Aurillo, Metaire, for plaintiffs-appellants.
    Guste, Barnett & Shushan, William M. Barnett, New Orleans, for defendant-appel-lee.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   LEMMON, Judge.

This matter is before us on an application for supervisory writs filed by National Super Markets, Inc., complaining of the trial court’s ruling that plaintiffs may appeal under C.C.P. art. 5181 et seq. without paying the costs in advance or as they accrue or furnishing security therefor.

The appealed judgment awarded plaintiffs $7,692.81, plus expert fees, court costs and interest. National has paid this judgment in full, and plaintiffs’ appeal seeks an increase in the award.

Plaintiff’s husband’s 1976 gross income as a longshoreman was $20,898.23, approximately the same as the two previous years, and at the time of the rule to traverse he was working at the same employment and earning the same rate of pay. Additionally, plaintiffs own their own home and furnishings and an automobile. Their five children attend public schools.

The estimated costs of the appeal are $1,200.00.

The trial court has discretion in determining whether a person is unable to pay court costs “because of his poverty and lack of means”. We believe, however, that the trial court abused its discretion in this case in determining that plaintiffs are unable to pay court costs because of their poverty and lack of means, when their earnings are almost $21,000.00, although the wife is unable to work and the family has substantial monthly debts.

Accordingly, the application for supervisory writs is granted; the judgment on rule permitting the appeal without payment of costs in advance or as they accrue and without furnishing security therefor is reversed; and it is now ordered that appellants furnish security for the appeal within sixty days of this order and pay the costs of appeal as they come due.

SUPERVISORY WRITS GRANTED, JUDGMENT ON RULE REVERSED, ORDER RENDERED.


author: PER CURIAM. STOULIG, Judge,

text:
    Phyllis DAVIS, Individually and as Administratrix of the Estate of her minor child, Kimberly Davis v. ALLSTATE INSURANCE COMPANY.
    No. 8054.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    Garon, Brener & McNeely, John F. Rob-bert, New Orleans, for plaintiff-appellant.
    Herbert B. Bowers, III, and G. Michael Bourgeois, New Orleans, for defendant-ap-pellee.
    Before LEMMON, STOULIG and BEER, JJ.
   PER CURIAM.

Plaintiff has appealed from the dismissal of her tort suit on behalf of her minor daughter against her landlord’s insurer. The child was injured when she lost her balance and fell as she leaned through the railing of the outside stairs to their upper apartment in responding to a call from some children on the ground below. The issue is whether the landlord is liable because the allegedly faulty design of the stairway created an unreasonable risk of injury to tenants, including children, in using the stairway.

The stairway had a wall on one side and a balustrade on the other. The balustrade consisted of vertical steel balusters or supports topped by a handrail which was 30 inches high. There was a lOVb-inch space between the balusters.

Plaintiff presented expert evidence by an architect who is a member of the National Safety Council. The architect opined (1) that the stairway violated both the New Orleans Building Code and the state construction code, [R.S. 40:1585A(9)], and (2) that if the stairway had complied with these codes, the child would not have fallen through.

Section 3305 of the New Orleans Building Code requires that “(a)ll stairways shall have walls, well-secured balustrades, or guards on each side”. A handrail is also required on one side, 30 inches above the nosing of treads.

The expert admitted the existence of a well-secured balustrade and of a handrail at the proper height, but stated his belief that the code was violated because the balusters were too far apart.

In addition to noting that the stairway complied with the specific requirements of the code, we emphasize that a violation of a penal statute or ordinance is not in and of itself determinative of civil liability, although such statutes may be applied by analogy in fixing civil liability. Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714 (1972); Smolinski v. Taulli, 276 So.2d 286 (La.1973).

Tort liability depends upon the existence of a duty and the breach of that duty that results in damages. A landlord has a duty to his tenants on an upper floor to furnish a stairway which is reasonably safe for its intended use. Thus, the determinative question in this case is whether the landlord by providing this stairway discharged this duty.

In the' Smolinski case, relied on by plaintiff, the stairway had only a 36-inch high handrail with no balusters whatsoever (and thus had no “well-secured balustrade”). The court found that stairway was not reasonably safe for normal use by a 30-inch tall child.

By contrast, the stairway in the present case had a handrail of proper height and balusters with reasonably spaced openings, and was safe for normal use by small children. This accident occurred because of abnormal use, when plaintiff’s child stuck her head between the balusters and leaned through.

We conclude that the design of this stairway did not create an unreasonable risk of harm to children in its intended use.

The judgment is affirmed.

AFFIRMED.

STOULIG, J., dissents and assigns reasons.

STOULIG, Judge,

dissenting.

I respectfully dissent.

The small child injured fell through a lOVfe-inch-wide opening between vertical supports in an iron staircase. (Exhibits Connell 6 and D-6). Architect Lee R. Con-nell, Jr., testified that this was an unsafe condition for toddlers. Either the maximum opening should have been 6 inches or there should have been a middle horizontal bar, according to the unrebutted expert testimony.

That the landlord did not permit tenants with young children to occupy second-story apartments as a general rule reflects his concern for this apparent hazard. Under C.C. art. 2695, the landlord in this case should be held to the strict liability therein imposed.

Exhibit Connell 6

Exhibit D-6

      . Balustrade is defined as “a row of balusters topped by a rail . . .. Webster’s Third New International Dictionary (1971).

      . Since the arguments as to codal violations are similar, we discuss in detail only the New Orleans Building Code. R.S. 40:1585A(9), the other cited building code, requires:
      “Unprotected sides of balconies or landings and stairs shall be enclosed by handrails located vertically thirty inches above the tread nose or balconies, with an intermediate rail located halfway between the handrail and the tread nose or balcony.”
      We view the handrail and intermediate rail as an acceptable substitute under the state code for a balustrade (handrail and vertical balusters). Such a device actually offers less protection than a balustrade. It would not be a reasonable conclusion, however, to interpret the state code as requiring that a stairway have both closely spaced balusters and an intermediate rail in order to be safe for normal use. Furthermore, an intermediate rail alone would not have prevented this accident.