text:
    STATE of Louisiana, Appellee, v. James Edward CARSON, Appellant.
    No. 57437.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      Bernard E. Burk, Clyde D. Merritt, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Lawrence J. Centola, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of murder, La.R.S. 14:30 (1950), and sentenced to life imprisonment. The most serious of the ten assignments of error made are presented by assignments 1, 2, and 4.

Assignment of Error No. 1

By this assignment, the defendant contends that the state did not meet its burden of proof that his confession was given voluntarily and without coercion.

Before introducing an accused’s confession in evidence, the state must affirmatively show beyond a reasonable doubt that it was made freely and voluntarily and without coercion or inducement. La.R.S. 15:451, 452; La.C.Cr.P. art. 703(C); State v. Simmons, 328 So.2d 149 (La.1976); State v. Peters, 315 So.2d 678 (La.1975); State v. Monroe, 305 So.2d 902 (La.1974); State v. Simien, 248 La. 323, 178 So.2d 266 (1965); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950). As these decisions hold, the decision of the trial judge on the issue is entitled to great weight, but this reviewing court nevertheless cannot avoid its responsibility to examine the record to be certain that the state has fully borne its heavy burden of proving that the confession is free and voluntary.

In the present instance, the accused was interrogated between twelve midnight and six a. m. before his confession was reduced to writing. About an hour of this time was taken by three to five polygraph tests, and another hour and one-half by detectives (just who surfaces as an issue) taking the defendant out of the detective bureau over to the scene of the crime.

Officers Heath, Maunoir, and Hamilton (a polygraph expert) testified, as did Ex-officer Z. (who took the confession but was no longer with the force). Officer Z.’s partner, Officer Laper, was present that day (but not necessarily at the interrogation), although not called to testify. Officer Maunoir’s partner in the investigation was shown as Officer Cooper on a form executed at the start of the interrogation (S-l); but the trial court sustained state objection to the defense effort to ascertain whether he was present that day, or whether he served as Officer Heath’s partner. See Tr. 39-40, hearing on motion to suppress.

The police officers testified generally as to the voluntariness of the confession and the lack of coercion. Officers Heath and Z. testified that they had taken the defendant from the detective bureau to look for evidence, but they were not questioned nor did they testify as to a coercive incident claimed by defendant’s subsequent testimony to have occurred during this absence from the detective bureau. It is also fair to state that, not unnaturally, the testimony of the police officers is somewhat imprecise as to just what officers were present during all parts of the interrogation and as to the circumstances of what part, if any, the regular partners of the testifying officers took in the investigation. (Some of the interrogation forms, for instance, indicated that Officer Cooper (Officer Maunoir’s partner) took part, see S-l and pp. 14-15, although he did not testify.)

The defendant testified that, after the polygraph tests indicated the truthfulness of his denials of guilt, he was taken by Officer Z. and Officer “Tomlin” out by the levee (near the scene of the crime), where Officer Z. left one bullet in his pistol and told him he (the accused) was going to play Russian roulette with the gun if he didn’t sign the statement, threatening him with the pistol several times. The accused also testified that he was beaten.

When as here the defendant has testified to a specific incident of coercion, the state may not rely simply upon its prior general testimony of voluntariness; but instead, to satisfy its heavy burden of proof, is required to rebut the particulars disclosed for the first time by the defense testimony. State v. Simmons, 328 So.2d 149 (La.1976); State v. Peters, 315 So.2d 678 (La.1975); State v. Monroe, 305 So.2d 902 (La.1974); State v. Simien, 248 La. 323, 178 So.2d 266 (1965); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950); State v. Robinson, 215 La. 974, 41 So.2d 848 (1949).

This is especially so where the evidence reasonably indicates that, in addition to these testifying, other investigating officers may have participated in the events, such as, here, Officers Laper and Cooper. For instance, the accused testified that an Officer “Tomlin” (who was not Officer Heath) was present with Officer Z. at the time of the coercive incident on the levee; although, when earlier asked, a police witness did not recognize the name of “Tomlin,” the evidence indicates that Officer Laper (Officer Z.’s normal partner) was present that day, as was Officer Cooper (the normal partner of another investigating policeman, whom the record indicates took part in investigative events in connection with the interrogation).

We note, too, the admission by Officer Z. that the accused was not booked upon his arrest, as required by department regulation, but instead was interrogated for six hours and not booked until after he had confessed.

In view of the cited jurisprudence — and also considering the unusual length of the interrogation, as well as the indications that at least some of the polygraph tests were favorable to the accused before he was taken from the detective bureau out to the scene of the crime (which was close to the levee), only after which trip he confessed — , we find that, to meet its burden, the state was required to recall its witnesses who had relevant knowledge, or to call others, to negate the inference of coercion arising from the defendant’s specific testimony concerning particular coercive incidents. Under these circumstances, the state could not, under the jurisprudence, rely upon general testimony of vol-untariness introduced as part of its predicate prior to the defendant’s testimony of coercion.

We find, therefore, that Assignment of Error No. 1 has merit.

Assignment of Error No\ 2

By this assignment, the defendant contends that the trial court erred in permitting the defendant’s confession to be introduced before a homicide was proved. He thus relies upon the jurisprudential rule that, before an accused’s confession may be introduced into evidence, the state must first prove the corpus delicti — i. e., that the crime has been committed — by evidence which the jury may reasonably accept as establishing that fact beyond a reasonable doubt. State v. Brown, 236 La. 562, 108 So.2d 233 (1959); State v. Morgan, 157 La. 962, 103 So. 278 (1925).

Before attempting to introduce the confession, the state proved:

The decedent was found lying on her back, bleeding heavily from a cut on her neck, her face covered with blood, breathing irregularly and heavily. She was sent to the hospital by emergency ambulance, where she died four days later. The coroner’s autopsy showed that the cause of death was a softening of the brain caused by bleeding. The medical records introduced indicate that surgery was necessitated by stab wound of the neck.

This evidence, we believe, adequately establishes a homicide — i. e., that the decedent died as a result of a stab wound in her neck. We therefore do not find merit in this assignment.

Assignment of Error No. 4

By this assignment, the defendant contends that the trial court erred in refusing to permit him to rebut (before the jury) the state’s predicate of voluntariness, in advance of permitting introduction of the confession into evidence by the state.

The trial court sustained a state objection. It held that, since the confession had been held admissible by the decision of a pre-trial motion , the defendant’s testimony as to its involuntariness went to its weight (not its admissibility) and therefore should preferably be heard as part of the defendant’s case on the merits (i. e., after the close of the state’s case, rather than contemporaneously with the introduction of the confession during the state’s case).

As we pointed out in State v. Whatley, La., 320 So.2d 123, 127-28 (1975), reasons of practical efficiency and fairness may often point to having the jury hear defense evidence going to the weight of the confession contemporaneously with the state’s predicate laying the foundation to introduce it into evidence. See authorities and reasons therein cited. Nevertheless, a majority of this court has concluded that to permit this procedure, State v. Whatley, cited above, cf. also State v. Brumley, La., 320 So.2d 129, 130-131 (1975), or to refuse it, State v. McCauley, La., 272 So.2d 335, 341-43, (1973), lies within the sound discretion of the trial court in the regulation of the production of evidence required as a foundation for the admissibility of other evidence. La.C.Cr.P. arts. 3, 773.

In the present case, we find no abuse of discretion.

Conclusion

The other assignments of error (which present no constitutional issue) do not merit reversal nor require discussion. They are clearly governed by statute or prior jurisprudence, involve evidentiary or argument rulings within the discretion of the trial court, or else are determined by our rulings with regard to assignments 1, 2, and 4, above discussed.

Since we find no trial error except that on the motion to suppress, it is not necessary at this time to reverse the conviction and order a new trial, because the error might be eliminated upon another trial of the motion to suppress. See State v. Simmons, 328 So.2d 149 (La.1976). As in Simmons, we reserve to the trial judge the power to grant a new trial should he determine the confession inadmissible (a matter on the merits of which we express no opinion). If, on the other hand, the trial judge determines, after a hearing on the motion to suppress, that the confession is admissible, the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

The case is, therefore, remanded to the district court for further proceedings in accordance with this opinion.

CASE REMANDED, WITH INSTRUCTIONS TO DECIDE MOTION TO SUPPRESS AND EITHER LET CONVICTION STAND OR ELSE GRANT A NEW TRIAL.

SUMMERS, J., dissents.

      . At the trial on the merits, the attorney retained by the defendant’s mother returned from Mississippi to testify that he saw the accused five days after his arrest and found his face swollen, with several gashes on his forehead. The attorney did not, however, testify at the pre-trial motion to suppress the testimony.

      . At the trial on the merits, the evidence indicates Officer Z. and his partner Laper were assigned to investigate this homicide. Tr. 42.

      . Upon a pre-trial motion to suppress it, the trial court had initially decided that the confession was admissible as voluntary, after hearing both state and defense evidence as to the issue. See La.C.Cr.P. art. 703(B). By this same code article, however, when the ruling on the motion to suppress is adverse to the defendant, the state is again required, prior to introduction of the confession at the trial, to introduce evidence as to the circumstances surrounding the confession as a predicate to introducing it “for the purpose of enabling the jury to determine the weight to be given to it.”


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    GULF COAST PRE-MIX TRUCKING, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 57500.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      Harold R. Ainsworth, New Orleans, for plaintiff s-appellants.
    Marshall B. Brinkley, Gen. Counsel, Thomas K. Kirkpatrick, Dozier, Keyser & Kirkpatrick, Baton Rouge, for defendant-appellee.
   SUMMERS, Justice.

Rome Truck Lines, Inc., applied to the Public Service Commission for a certificate of public convenience and necessity and for authorization to operate a common carrier motor freight service transporting “all liquids pertaining to the drilling, bringing in, cleaning out and working over of oil wells and gas wells, including salt water and fresh water, in tank trucks, but excepting acids and fuel for combustion purposes” over “irregular routes from, to and between all points within the State of Louisiana.”

Vacuum Truck Carriers of Louisiana, Inc., and its member carriers, Younger Brothers, Inc., and Groendyke Transport, Inc., filed protests. The matter was heard before the Commission on March 18, 1975, and on June 16, 1975, the Commissioner issued its order granting the certificate applied for, except that the territory was limited to that part of the State south of a line drawn east and west through the city of Alexandria. One of the three commissioners dissented.

When a rehearing was denied by the Commission by a two-to-one vote, Gulf Coast Pre-Mix Trucking, Inc., Prudhomme Truck Tank Service, Inc., Garret Oil Field Service, Inc., Vacuum Tank Service of Vi-dalia, Inc., B & M Trucking, Inc., and Vacuum Truck Carriers of Louisiana, Inc., all Louisiana corporations, filed suit in the Nineteenth Judicial District Court to set aside and nullify the Commission’s order, alleging that the order of the Commission was erroneous for the following reasons:

1. Applicant failed to prove that the public convenience and necessity would be materially promoted as required by Section 164 of Title 45 of the Revised Statutes.
2. Applicant only attempted to show a need from Houma, yet a vast territory was awarded.
3. Applicant’s witnesses proved that the present service from Houma is adequate and no additional service is needed even from this point of origin.
4. Applicant only attempted to show a need to transport one commodity, yet all of the commodities requested by applicant were authorized.
5. The order is contrary to the law and the evidence at the hearing.
6. The evidence at the hearing established that there is ample and adequate service available and no additional service is required.

A general denial was filed by the Commission, and Rome Truck Lines, Inc., intervened in the suit in support of the Commission’s order. By agreement the matter was submitted on the pleadings and the record formed at the hearing before the Commission.

While expressing “some reservations as to the necessity of another motor carrier to transport these commodities” the trial judge affirmed the Commission order; whereupon plaintiffs appealed to this Court.

Applicant, Rome Truck Lines, Inc., presented three witnesses in support of its application. Daniel J. Rome, Sr., testified that he was an oil field consultant on the drilling, completion and production of oil wells. He said that the company was recently formed by him and that he had filed proper evidence with the Commission to demonstrate the requisite financial responsibility. If the application were granted, he would run the company, and he intended to purchase 16 trucks, 14 vacuum tanks and 2 others, for use in the business.

On cross-examination he asserted that he felt there was a need for the business, because in his occupation as a consultant there were times when it was necessary to wait “quite a bit” on trucks. Nevertheless, he was not prepared to give details or present records of these delays, and he relied upon his other witnesses to supply the data. He conceded also that he had neves tried to use existing carriers for transportation of petroleum products and had no authority, as a consultant, to designate the bulk petroleum carrier.

Wayne Bollinger, assistant operations manager of Delta Mud and Chemical Company of Houma, is involved in the daily operations of his company trucking drilling mud, calcium chloride and salt water. In this capacity he engages the trucks for deliveries. When Prudhomme and Gulf Coast Pre-Mix do not have trucks available, he said, they inform the company ordering the drilling mud that there will be a delay in the delivery, because to call an out of town truck merely would entail further delay without significantly alleviating the situation at the well. He kept a log of delays due to unavailability of trucks. There were about five or six instances entered in the log of delays during a five-month period involving approximately 400 shipments. Except for one, the delays involved less than six hours. The log was not represented to be entirely accurate, the intimation being that there were other delays.

Time is particularly important when certain types of muds are required at the drilling site, for these certain types are used to dislodge drill pipe. Stuck drill pipe is a threat to the well and can result in a fishing operation or a blowout and heavy expense. Otherwise, delays in delivery of other type muds used in routine drilling operations pose no unusual threat to the well. Less heavy expense in the drilling operation is sometimes involved in these latter instances, however, for the crew and equipment are mostly idle during the delay.

Max Patterson appeared at the hearing in support of the application to represent Louisiana Mud Company, which also handles liquid mud products. He was of the opinion that the addition of Rome Truck Lines, Inc., to the available truck lines at Houma would make delivery of his product easier and would help the customers “at times”. He kept no logs of delays due to truck shortages but indicated delays did occur. He had no recollection, however, of specific instances.

Larry Brown who appeared on behalf of Groendyke testified in direct presentation that Groendyke was protesting this application because if the application as originally submitted was granted certain wording would possibly authorize the transportation of petroleum products, one of the principal commodities transported by Groendyke. It would also authorize the transportation of salt water and fresh water, which Groen-dyke is presently authorized to transport anywhere in the State in bulk. The wording to which Brown pointed to support his apprehension is: “The transportation of all liquids pertaining to the drilling, bringing in and cleaning and working over of oil wells and gas wells.” Rome supported this fear of Groendyke's by testifying that he did in fact intend to transport petroleum products in two of the tank trucks which he intends to purchase.

It is also clear, however, that Groendyke would have no standing to protest certain other portions of the commodity description in the application which would authorize the applicant to transport “liquid mud, chemical acids in bulk in tank trucks” used in the drilling, bringing in or cleaning out of oil wells because the operating authority of Groendyke specifically prohibits the transportation of these commodities while transportation of salt water and fresh water by Groendyke is not prohibited or restricted.

In support of the authority which it sought to transport petroleum products, salt water and fresh water, the only evidence adduced by the applicant was the testimony of Rome, who made the self-serving, unsupported declaration that he intended to transport these two commodities. Rome’s witnesses, Bollinger and Patterson, testified that they had no need for any transportation of petroleum products. Although Bollinger testified to a need for the transportation of salt water and fresh water, he expressed no dissatisfaction with the service offered by existing carriers transporting these commodities. There was, therefore, no evidence on which the Commission could support a grant of any authority to Rome Truck Lines, Inc., authorizing it to transport these two commodities. Groendyke asks that if authorization is granted it specifically exclude the transportation of petroleum products in bulk, salt water and fresh water.

Wray E. Hughes appeared on behalf of the protester Younger Brothers, Inc. That company is authorized to engage in intrastate trucking in Louisiana transporting petroleum products and liquid commodities, including salt and fresh water but not including muratic acid and liquid mud. Terminals are maintained in Lake Charles and Baton Rouge. Its Houma terminal had been discontinued for lack of business. According to this witness his company has experienced a loss of business requiring that 30 to 35 drivers, clerical people, shop and service employees be laid off.

John Garrett, with Garrett Oil Field Service of Haynesville, operates in North Louisiana transporting fresh water, salt water, oil field waste, and occasionally, liquid mud. He testified that orders for liquid mud are generally anticipated about twelve hours in advance and that emergencies cannot be anticipated. When these occur any delivery is late, no matter how prompt. His equipment, he said, was often idle, and additional competition was not needed because he could handle more business.

Mary Williams, with Vacuum Tank Service of Vidalia, testified that her company is taking care of the needs of the shipping public, and two of her company’s trucks were presently idle. At this time there is not much drilling activity in her area. Additional competition would be harmful to her business, according to her testimony.

, Edward M. McLandrich is president of B & M Trucking, Inc. of Lafayette. From its Lafayette terminal that company is actively transporting commodities for which applicant is seeking authority. He knows of no need for additional trucking facilities and declares that additional competition would be harmful to his company.

The branch manager of Browning-Ferris Electric Service, Walter Elkins, testified his company has terminals in Lake Charles, Monroe and Baton Rouge with 21 vacuum trucks available to locate where needed. Although they presently serve the southwest part of the State, equipment is available to serve where the need arises,

Elkins said mud which is ordered must frequently be conditioned with “baryte” to specific weights and that this causes delays. He verified previous testimony that the company conducting the drilling operation usually anticipates its need for mud and places the order in ample time (sometimes the previous day) to permit delivery when the need arises. When emergencies occur the delivery is made as quickly as possible, but under these conditions any delay, however short, is late. He joined the other certificated carriers in the lament that additional competition would be harmful to his business.

Prudhomme Tank Truck Service, Inc. of Lafayette was represented by its general manager, Wilbur J. Ducharme. This company has 20 units, 9 in Houma and 11 in Lafayette, in addition to transports at both locations to haul petroleum products. The company is active in the transportation of commodities involved in Rome’s application and is in a position to purchase more equipment if needed. If the demand for equipment in Houma justifies the move, units from the Lafayette terminal can be transferred within four hours. This transfer involves no additional cost to the customer, for under these circumstances tariffs require billing from the Houma terminal if the commodity is delivered from that territory.

Normally they are able to provide a truck at the loading point within an hour. Emergencies occur but they are not frequent. If all units are in use and an emergency arises, Prudhomme calls its competitors to provide the needed trucks. Du-charme had no knowledge that any serious problem involving service in the Houma area had ever been presented. Emergency situations had only arisen twice during the month and generally represent about two percent of the company’s revenue from both terminals.

Robert Hollier, the assistant general manager of Gulf Coast Pre-Mix Trucking, testified that the company has terminals in Lafayette and Abbeville employing 36 vacuum trucks, 12 in Houma and 24 in Abbe-ville. The company is meeting all public needs for its services. In all liquid mud situations the driller usually knows 36 hours in advance when they are going to have a “changeover”. Normally the trucker is notified a night in advance of the needed shipment. In emergency situations, however, no advance notice is given. In those cases when no equipment is available, units are pulled off a routine job. The use of the special type mud required in emergency situations where pipe is stuck usually requires only one or two trucks, and in 95% of the cases trucks will be available. Coordination between the mud companies and the haulers avoids other complications in emergency situations.

Transfer of units to Houma from Abbe-ville is accomplished when the need arises and imposes no additional charge on the customer, the charge being from the point where the mud is loaded. Gulf Coast is open 24 hours a day, 7 days a week, and has lots of competition. All public needs for the company’s service are met.

Hollier explained Bollinger’s and Patterson’s testimony as follows:

“I understand that there were only five instances that only one of the two could point out and substantiate that they were late getting equipment. In all probability, in these particular instances it was not an emergency condition and it wasn’t emphasized. Otherwise units would have been pulled off another job.”

The law applicable to this case requires a consideration of Section 164 of Title 45 of the Revised Statutes, which reads as follows:

“No motor carrier shall operate as a common carrier without'first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.
“No motor carrier shall operate as a contract carrier without having had a public hearing and obtained from the commission a permit to do so, which permit shall not be issued unless in the public interest and until the applicant shall have complied with the requirements of R.S. 45:161 through R.S. 45:172.”

This statute imposes a high degree of proof on an applicant to show public convenience and necessity over a route where an existing carrier is already operating and serving the public. A clear showing is required that the public convenience and necessity would be materially promoted by the proposed service. Herrin Transportation Co. v. Louisiana Public Service Commission, 261 La. 977, 261 So.2d 635 (1972); Bulk Transport, Inc. v. Louisiana Public Service Commission, 252 La. 9, 209 So.2d 4 (1968); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965); Herrin Transportation Co. v. Louisiana Public Service Commission, 241 La. 174, 127 So.2d 541 (1961); Texas and New Orleans Railroad Company v. Louisiana Public Service Commission, 235 La. 973, 106 So.2d 438 (1958).

In the hearing to support this application the applicant has failed to make any showing that the public convenience and necessity would be materially promoted by allowing another motor carrier to transport petroleum products and salt and fresh water in bulk in any geographical area of the State. The showing was limited to one geographical area around the city of Hou-ma with no showing whatsoever being made for any need of additional transportation facilities for any commodities in any other part of the State. To the contrary, the showing is limited to the need — demonstrated by five instances — for a prompt delivery of a certain type of mud needed during infrequent emergencies. Even these instances do not support a finding of delays detrimental to the public convenience and necessity.

No showing whatsoever is made insofar as the other commodities covered by the application: “all liquids pertaining to the drilling [except the special mud required to dislodge stuck drill pipe], bringing in, cleaning out and working over of oil wells and gas wells, including salt water and fresh water, in tank trucks.” Yet the certificate was granted to permit operations in the entire area of the State south of the city of Alexandria, and all commodities covered by the application were approved.

With respect to the five instances where delays in delivery are claimed, there is no showing that these delays resulted in damage or inconvenience to anyone. Although we may assume from the testimony that damage or inconvenience did occur, the inference is also plausible that these emergency situations necessarily involve a certain amount of damage or inconvenience which is, as a practical matter, unavoidable.

In these circumstances the major requirement is that the applicant demonstrate that his proposal is responsive to public demand left unsatisfied by existing authorized carriers. This is customarily and as a matter of practice accomplished through public shipper testimony establishing facts which meet this burden of proof. Generalities do not suffice.

Against the showing of the applicant, the record contains the evidence and protests of all the carriers to which reference has been made in this opinion. They are well equipped and assert they are capable of providing the service which applicant proposes without inconvenience to the public. There is no satisfactory showing to the contrary.

Existing carriers have the right to transport all the traffic that they can handle adequately, efficiently, and economically in the territories they serve without the added competition of a new operation. The public is ultimately the loser as the result of unnecessary duplication of utility or transportation facilities. Reduction in income and revenues of existing carriers causes the inevitable reduction of services and schedules. Herrin Transportation Co. v. Louisiana Public Service Commission, 241 La. 174, 127 So.2d 541 (1961).

This opinion involves a detailed reference to the evidence because of the Court’s reluctance to overturn the findings of the Commission. But in this instance the dissent of one commissioner and the “reservations” expressed by the trial judge are well-founded. We are convinced, therefore, that the record cannot reasonably support the certification of applicant.

For the reasons assigned, the judgment appealed from is reversed and the order of the Commission is annulled and set aside.


text:
    STATE of Louisiana v. Arthur Lee TAYLOR.
    No. 57427.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      R. Perry Pringle, Johnston, Thornton, Pringle & Greer, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

On May 5, 1975 the grand jury of Caddo Parish returned a true bill charging that on April 21, 1975 Arthur Lee Taylor committed second degree murder of Annie Mae Allison. Taylor was tried before a jury on October 20 and 21, 1975, found guilty as charged and sentenced to life imprisonment.

Four assignments of error were perfected to rulings of the trial judge during trial.

I.

Assignments of errors 1 and 2 are considered together for the purpose of argument. These assignments involve the overruling of defense objections to the State’s witnesses testifying to inculpatory statements made by the defendant to police officers.

At approximately 10:30 on the evening of April 22, 1975 Taylor turned himself in at the Caddo Parish jail. Detectives Brann and Strange placed him under arrest. They then transferred him to the detective office of the Shreveport Police Department. Thereafter he was jailed and advised of his Miranda warnings, and he signed a card to that effect. No interrogation was conducted, however, because Taylor “had been drinking.” Detective Snell was with Brann at the time.

The next night at 10:30 Brann again talked to Taylor, at which time he again advised Taylor of his rights in the presence of Detective Snell, reading the rights from the card. At that time he asked Taylor if he wanted to make a statement. Thereupon Taylor said he was at the victim’s house and an argument over money took place. During the argument, according to Taylor, the victim picked up a butcher knife and cut him on the hand. Taylor then took the knife from her, stabbed her a couple of times and left.

The defense position is that Section 451 of Title 15 of the Revised Statutes requires that before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under influence of fear, duress, intimidation, menaces, threats, inducements or promises. This requirement, coupled with the pre-in-terrogation warnings and waiver required by the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is argued, imposes a heavy burden upon the State to demonstrate that a defendant did knowingly and intelligently waive his privilege against self-incrimination and his right to appointed counsel prior to the introduction of a confession. In this connection the defense contends that the advice of rights form, signed by Taylor on the night of April 22 while he was intoxicated, could not serve to satisfy the requirements of the Miranda rule. Moreover, it is claimed, even if the oral warning given to Taylor the next morning when he was undoubtedly sober would suffice to inform Taylor of his rights, there was no clear waiver of these rights by Taylor.

Detective Brann testified regarding the card from which he read the Miranda warnings to Taylor on the night of April 23 as follows:

“It says you are under arrest for your part in the offense of second degree murder. I hereby notify you that you have a right to remain silent and you are not required to make any statement unless you want to do so voluntarily. Anything you say will be used against you in a court of law and you also have a right to consult with your attorney and to have him present with you. If you cannot afford an attorney one will be appointed to represent you. While you are not required to make any statement you may waive these rights just explained to you and you are given the privilege of saying anything you want to about this case. Now with this understanding and waiving these rights just explained to you, do you wish to make a statement and tell how this happened.”

On that occasion Taylor said he understood his rights and would give them a statement.

While we agree that the State’s burden to establish the free and voluntary character of a confession is a heavy one, the advice given to Taylor by Detective Brann in the presence of Detective Snell adequately fulfilled the pre-interrogation warnings required by the Miranda decision, and the waiver of those rights is implicit from Brann’s recitation, coupled with Taylor’s statement immediately following.

Some conflict in the testimony is apparent relative to the Miranda warnings on the second occasion and whether these warnings were read to Taylor or simply recited by Detective Brann. Detective Snell’s testimony on that question was accepted by the trial judge. Snell said: “Now, we did read them off of the card. I will have to stay that. We didn’t get him to sign that but we read them off of the card.” This testimony was repeated on cross-examination. On the other hand Brann, whose memory did not seem to be as good, said he recited the Miranda warnings. But whether the warnings were read or recited is unimportant. What is important is that Taylor was informed of "his rights and understood them. This much is not controverted.

It is also noted there is no showing that Taylor’s condition of intoxication on the night of April 22 was such that he could not understand the Miranda warnings contained on the card which he signed and on which he inserted the date of signing in his own hand.

In addition, the voluntariness requirements of Section 451 of Title 15 were satisfied by the testimony of both officers who were present when Taylor gave the confession or inculpatory statement. Both testified that Taylor fully understood his rights; no one coerced or forced him to make the statement; and he was not threatened. There is no evidence to the contrary.

II.

Assignment No. 3 is a claim that the court erred in allowing the State’s attorney, over defense objection, to introduce defendant’s confession without giving prior written notice to defense counsel of his intention to do so.

Two attorneys represented the defendant during the course of this prosecution. The first was Roland McKneely. While he was representing the defendant, on July 22, 1975, the district attorney’s office filed a notice of intention to use oral statements and/or admissions made by Taylor to Snell and Brann on April 23, 1975. Prior to that date, on July 1, 1975, pursuant to an order of court in response to a request for particulars, information was supplied relative to the circumstances surrounding the confession. This advice was contained in a letter from the District Attorney to defense counsel McKneely, which was filed in the record.

McKneely then withdrew as defense counsel due to the fact that he had accepted a position with the District Attorney’s office in Bossier Parish, and R. Perry Prin-gle was appointed on July 29 to carry on Taylor’s defense.

The narrow issue presented is whether the notice requirements of Article 768 of the Code of Criminal Procedure are met. Present counsel contends he has received no notice and, therefore, Article 768 has not been complied with. The Article provides :

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the State’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

In ruling on this question the trial judge was of the opinion the notice is required to be given to defendant, not his counsel, and defendant was effectively given notice on two occasions: first, when the July 1 letter was addressed to counsel who was at that time representing defendant and, second, when the July 22 notice was filed in the record and brought to the attention of counsel representing defendant. The trial judge was of the opinion that Article 768 did not require that these notices be repeated and served on Attorney Pringle after he became counsel in the case. Aside from the reasons assigned by the trial judge, which are correct, the Assistant District Attorney stated into the record that Attorney Pringle had access to the record from the time of his appointment on July 29 to the time of the trial on October 21. He stated, also, that prior to trial on two occasions he had discussed with Pringle the fact that Taylor had made an inculpatory statement and the contents of that statement in complete detail. This is not denied.

This assignment is without merit.

III.

At the conclusion of the trial, counsel for defendant requested that the trial judge prohibit the children of the deceased from being present in the courtroom during closing arguments and during the judge’s charge to the jury. When the request was denied defense counsel objected; the objection was overruled, and this ruling is the subject of the fourth assignment of error.

The record reflects that the four children of the victim were present in the courtroom during closing arguments and the charge to the jury. The defense contention is that the presence of the children unduly inflamed the jury to the prejudice of defendant, for two of them had testified and the jury was aware that they were the children of the victim. One of the children was six years old.

Defense counsel frankly concedes that he could not point to any precise authority to support his position. Nevertheless he like-ens this situation to the display of brutal or gruesome photographs, or bloody murder weapons, or garments. He refers the Court to State v. Morris, 245 La. 175, 157 So.2d 728 (1963), where we held in a case involving gruesome color sides depicting an autopsy that the test of admissibility in such cases is whether the probative value of the photographs outweigh their probable prejudicial effect.

This rule of weighing the probative value of evidence against its prejudicial effect, the defense contends, can be applied to the circumstances of this case where the four children were displayed in close proximity to the jury.

There is no showing that these children made any emotional outburst or display. They had a right to be there and the prejudicial effect of their presence in the courtroom, if any, has not been shown to outweigh their right to be in attendance at the trial. Their existence was a fact of the case already known to the jury.

There is no merit to this bill.

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


author:
SANDERS, Chief Justice. CALOGERO, Justice
      DENNIS, Justice DIXON, Justice

text:
    STATE of Louisiana v. Derwin J. TERREGANO.
    No. 57580.
    Supreme Court of Louisiana.
    June 21, 1976.
    Concurring Opinion of Justice Dennis July 2, 1976.
    Rehearing Denied Sept. 10, 1976.

      Albert S. Dittmann, Jr., Kronlage, Ditt-mann & Caswell, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Der-win J. Terregano, with the crime of indecent behavior with a juvenile contrary to the provisions of LSA-R.S. 14:81. The jury found him guilty as charged. The judge sentenced him to one year imprisonment, which he suspended, and placed him on active probation for one year. The defendant relies upon eight assignments of error for reversal of his conviction and sentence. Finding merit in none of them, we affirm.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns as error the trial court’s denial of his motion to quash the bill of information, contending that the bill “failed to allege each and every fact and circumstance necessary to constitute a crime and/or did not inform the accused of the nature and cause of the accusation against him but merely conclusions of law and no fact.” The bill of information reads as follows:

“DERWIN TERRIGANO, late of the Parish of Orleans, on the twenty-eighth day of November in the year of our Lord, one thousand nine hundred and seventy-four with force and arms in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans did wil-fully and unlawfully violate R.S. 14:81, relative to indecent behavior with a juvenile, in that he, the said DERWIN TERRIGANO being over the age of seventeen years, did commit a lewd, lascivious and sexually indecent act upon the person of one [named person], a female eight years of age, with the intent of arousing or gratifying sexual desire.”

This bill of information precisely tracks the language of the statute, LSA-R.S. 14:81. We find that it sufficiently and fully informed the defendant of the nature and cause of the accusation against him so that he could prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. See State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950), in which we held a similar bill of information valid.

The assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

In these two assignments of error, defendant contends that the trial court committed reversible error in allowing the victim’s mother to testify that on the day of the offense, her daughter called her from her grandmother’s house and said that she wanted to come home because she had something to tell her mother, and that when she came home she immediately started crying and screaming, dropped her clothes and game to the floor, and told her mother, “Derwin got me, mama.”

In State v. Pace, La., 301 So.2d 323 (1974), we held similar evidence admissible under the res gestae doctrine as well as under a special exception to the hearsay rule relating to the original complaint of a sex-offense victim. The rationale underlying the admitting into evidence of the victim’s original complaint is particularly strong where the complainant is a young child. The trial judge in the instant case correctly held that State v. Pace controls under these circumstances. In our opinion, the testimony is admissible under the special exception.

The assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the testimony of the victim’s mother should have been stricken from the record because someone from the prosecuting attorney’s office spoke to her about her daughter’s testimony prior to her own testifying. Upon the objection by the defense attorney, the court ordered the jury out of the courtroom and held a hearing. The vie-tim’s mother at first responded that someone had told her what her daughter had said on the witness stand. However, she later strongly denied this, stating that she was “incorrect” and that she had only been asked whether she had told her daughter what to say in court. The judge, finding that the rule of sequestration had not been violated, overruled the objection and permitted her to proceed with her testimony.

Defendant offers no evidence or allegations to dispute the witness’s assertions that she was not informed of the substance of her daughter’s testimony. Further, we have no such pleading as a motion to strike in Louisiana criminal procedure.

The assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the trial judge erred in overruling his objection to an “argumentative” question that “assumed and utilized facts not in evidence” which the prosecuting attorney asked a defense witness. It is well established that while an attorney should not be permitted to mold the testimony of a witness, a verdict should only be disturbed on that ground where there was clear abuse calculated to prejudice the rights of the accused. See, e. g., State v. Washington, La., 294 So.2d 794 (1974). Control of the examination of witnesses is within the sound discretion of the trial judge and his rulings in respect thereto will not be disturbed in the absence of an abuse of discretion. State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972).

We find no prejudice to the defendant nor any abuse of discretion on the part of the trial judge.

ASSIGNMENT OF ERROR NO. 7

In this assignment of error, the defendant contends that a mistrial should have been ordered under Louisiana Code of Criminal Procedure Article 770(2) because the District Attorney allegedly referred to another crime committed by the accused, about which evidence was not admissible. He also avers that the District Attorney failed to comply with the procedural guidelines for the use of evidence of other similar offenses set forth in State v. Prieur, La., 277 So.2d 126 (1973). The following cross-examination of the defendant by the prosecuting attorney is the basis for the defendant’s assignment of error:

“Q: Had you ever made any advances previous to this time on advances previous to this time on [the victim] ?
A: No.
Q : You’re sure that you .
BY [DEFENSE ATTORNEY]: Object to the phraseology of the question. It’s an insinuative question.
BY THE COURT: I’ll overrule you. He’s under cross-examination.
BY [DEFENSE ATTORNEY]: I’d still note an objection.
BY THE COURT: Alright, sir.
Q: Did you ever talk to [the victim] ?
A: Yes. I speak to everybody.
Q: How often did you talk to her ?
A: When I see her.
Q: Did you ever approach her and say anything to her in the way of inviting her into sexual conduct?
A: No.
Q: You’re sure about this ?
A: I’m sure.
Q: Are you sure that a couple months before this incident .
BY [DEFENSE ATTORNEY]: Object. We’re only concerned about the 28th of November, 1974, and I again object to the insinuations.
BY THE COURT: Do you have a specific date . . . ?
BY [PROSECUTING ATTORNEY]: I can’t place a date, Your Honor.
BY THE COURT: I’ll have to sustain your objection . . . ”

The defense attorney then moved for a mistrial, which the court denied on the ground that the question had not been answered. The judge instructed the jury to disregard the question.

Because of the defendant’s prompt objection to the question, which the trial judge sustained, the witness never responded to the question and no evidence of other offenses allegedly committed by the defendant was ever in fact admitted except for his denials thereof. The question itself furnished no prohibited information; only an answer thereto could have done so. Consequently, we have held in the past that it is the compulsory extraction of the facts sought by a question rather than the question which is prohibited. See State v. Maney, 242 La. 223, 135 So.2d 473 (1961).

Moreover, “making advances” is merely preparatory to the commission of this crime, and evidence of advances only is not evidence of other crimes. The defendant’s answers were negative, and we find that he was not prejudiced by these interrogatory, non-assertive questions which were asked for the purpose of establishing a relationship between the parties. State v. Prieur, supra, is thus inapplicable and the assignment of error is without merit.

ASSIGMENT OF ERROR NO. 8

After the verdict, the defendant filed a motion for a new trial, based primarily on the alleged discovery of new evidence. He assigns this error to the overruling of his motion by the trial judge following a hearing thereon. He also urges that the verdict was contrary to the law and the evidence, which allegation presents nothing for this Court’s review on appeal. See, e. g., State v. Williams, 262 La. 160, 262 So.2d 507 (1972).

After a careful review of the transcript of the hearing on the motion for a new trial, we affirm the trial court’s ruling that most of the witnesses were present at the trial, but did not then testify, and that the testimony at the hearing was merely corroborative of witnesses who did testify on behalf of the defendant. The defendant elicited no new evidence, nor did he present any newly discovered witnesses at the hearing.

It is well settled that a motion for a new trial based on the ground of newly discovered evidence is not favored in the law and should be received with extreme caution; that the determination of whether to grant the new trial on this ground is largely within the trial judge’s sound discretion; and that his ruling will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Ferguson, La., 307 So.2d 361 (1975); State v. Cancler, 252 La. 380, 211 So.2d 298 (1968).

The assignment of error has no merit.

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

CALOGERO, J., concurs with reasons.

DENNIS, J., concurs and assigns reasons.

DIXON, J., dissents with reasons.

CALOGERO, Justice

(concurring).

With respect to assignments three and four, testimony of the eight year old victim’s mother concerning her daughter’s statement following the crime is here admissible but not because part of the res gestae.

DENNIS, Justice

(concurring).

The original complaint of the victim is admissible under the circumstances of the case, but I do not agree that it is part of the res gestae.

I respectfully concur.

DIXON, Justice

(dissenting).

I respectfully dissent. It seems to me that State v. Edwards, 283 So.2d 231 (1973) requires the reversal of this conviction under Assignment of Error No. 1. The bill of information charges none of the essential elements of the crime.


author: SANDERS, Chief Justice.

text:
    J. Daniel RIVETTE v. Regis MOREAU (ESTATE of Emily MISTRIC).
    No. 57376.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      Daniel J. McGee, Rozas, Manuel, Fon-tenot & McGee, Mamou, Andrew J. Vid-rine, Church Point, for plaintiff-respondent.
    Lawrence B. Sandoz, Jr., Sandoz, San-doz & Schiff, Opelousas, for defendant-applicant.
   SANDERS, Chief Justice.

Defendant, Regis Moreau, applied for review of the Court of Appeal’s decision which reversed the district court judgment in this succession proceeding and ordered the case remanded for probate of testatrix’s statutory will. 322 So.2d 790 (1975). We granted writs to review the judgment. La., 325 So.2d 614 (1976).

Plaintiff, J. Daniel Rivette, is a nephew of defendant and a second cousin of the testatrix, Emily Mistric Moreau. Emily Mistric Moreau is the deceased wife of the defendant. Rivette was both the executor and a beneficiary of the deceased’s statutory will executed May 5, 1964. The probate of that will is at issue in this proceeding.

In December of 1967, Moreau presented an olographic will for probate. A judgment placing Moreau in possession of the testatrix’s entire estate was signed in an ex parte proceeding. In March of 1968, Rivette filed a petition seeking annulment of the olographic will and the judgment of possession based upon it. Rivette presented a duplicate original of the 1964 statutory will for probate. Moreau answered the suit and filed an opposition to the statutory will on several grounds, including tacit revocation. The olographic will was declared null and that judgment has become final. The trial judge also invalidated the statutory will on the ground that the testator could not read. Although extensive testimony had been offered on revocation, the trial judge did not reach that issue. Plaintiff, Rivette, appealed. The Court of Appeal found that the testator was able to read at the time of the execution of the will. It then reversed the trial court judgment and remanded the case to the trial court. 261 So.2d 293 (3rd Cir. 1972). Moreau’s application to this Court for writs was denied. 262 La. 193, 262 So.2d 789 (1972).

After the 1972 judgment of the Court of Appeal, Rivette again attempted to probate the statutory will in the trial court. Moreau again opposed the will on the ground that it had been tacitly revoked by destruction of a duplicate original. Rivette filed an exception of res judi-cata, which the trial judge overruled. On the merits, the trial judge annulled the statutory will.

The Court of Appeal reversed the trial court’s judgment, holding that the litigation was barred as res judicata.

In 1972, the Court of Appeal reversed the trial court judgment invalidating the statutory will and remanded the case to the trial court. This Court denied writs. Upon the denial of writs, the judgment became final. The issue then is whether that judgment bars the present litigation under the principles of res judicata.

Article 2286 of the Louisiana Civil Code provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

The above article is civilian in origin, having been derived from Article 1351 of the Code Napoleon (1804). The doctrine is based on a presumption of correctness, rather than on an extinguishment of the cause of action. LSA-C.C. Art. 2285; 1 Planiol Civil Law Treatise, pt. 1, No. 361 (12th ed. La.State L.Inst. transí. 1939). As a general rule, the decided case precludes a second litigation only if it involves the same parties, the same cause, and the same object of demand as the prior suit. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. LSA-C.C. Art. 2286; Scurlock Oil Company v. Getty Oil Company, La., 294 So.2d 810 (1974); Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (1966); Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); 34 La.L.Rev. 763, 765.

The determination of the object of the first judgment in the present case requires an interpretation of the decree. See Soniat v. White, 155 La. 290, 99 So. 223 (1924); Police Jury of Parish of Lafourche v. Police Jury of Parish of Terrebone, 48 La.Ann. 1299, 20 So. 708 (1896); 2 Planiol, Civil Law Treatise, pt. 1, No. 54A(5), p. 36 (11th ed. La.State L.Inst. transl. 1939).

The decree in the first case reads as follows:

“For the foregoing reasons, the judgment appealed from is reversed and remanded. The defendant-appellee is to pay all costs.
“Reversed and remanded.”

As phrased, the decree did nothing more than reverse the judgment of the trial court and remand the case for further proceedings. The remand, of course, would permit the trial judge to consider other grounds of opposition not reached by him upon the original disposition.

The plaintiff, however, relies upon the following language found in the body of the Court of Appeal opinion:

“For that reason we find that the trial judge erred and reverse his finding that, the testatrix lacked the necessary qualifications at the date of execution of the will. We remand this case to the District Court for the probate of the statutory will.” (Italics ours.)

It is well settled that in the application of res judicata, it is the judgment, or decree, and not the reasoning that led to it which is controlling. Soniat v. White, supra; State ex rel. Puritan Co. v. City of New Orleans, 169 La. 365, 125 So. 273 (1929); Davidson v. Carroll, Hoy & Co., 23 La.Ann. 108 (1871).

When the language relied upon is examined, however, it discloses that the Court of Appeal adjudicated only the literacy qualifications of the testatrix to make a will. If the word probate is taken to mean admission to probate, the last sentence is inconsistent with the decree. We think, however, that probate is used here as in common usage to mean the process of officially establishing the validity of the will.

We hold, therefore, that the exception of res judicata is unfounded. Since the Court of Appeal has not passed upon the merits of the case, we will follow our usual practice and remand the case to that court for consideration of the merits.

For the reasons assigned, the judgment of the Court of Appeal is reversed; the exception of res judicata is overruled; and the case is remanded to the Court of Appeal for consideration of the merits. All costs in this Court are assessed against plaintiff, J. Daniel Rivette, and the assessment of other costs shall await the outcome of the suit.

      . See Webster’s Third New International Dictionary Verbo probate: “the action or proe-es of officially establishing before a court” that a will is valid. See also In Re Hirsh’s Estate, 27 Ill.App.2d 228, 169 N.E.2d 591 (1960).


author: TATE, Justice. CALOGERO, Justice PER CURIAM. DIXON, J., DENNIS, J.,

text:
    STATE of Louisiana, Appellee, v. Prince SMITH, Appellant.
    No. 57348.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.
    Charles J. Yeager, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Smith was convicted of simple burglary, La.R.S. 14:62, and sentenced as a multiple offender, La.R.S. 15:529.1, to eighteen years imprisonment at hard labor.

The defendant’s single assignment of error is taken as to the trial court’s denial of his motion for a mistrial. The defendant argues that he was entitled to a mandatory mistrial based upon an alleged comment by the arresting officer and the prosecutor upon “ * * * the failure of the defendant to testify in his own defense * * * ”, La.C.Cr.P. art. 770(3).

I.

The alleged comment was upon the defendant’s election to remain silent and to refrain from giving a statement tO' the police officers immediately after his arrest. The comment did not concern the failure of the defendant to testify at the trial, which under Article 770 requires a mandatory mistrial when made by the prosecutor in the presence of the jury. State v. Hall, 297 So.2d 413 (La.1974).

In denying the defendant’s motion for a mistrial, the trial judge correctly concluded that Article 770 (requiring a mandatory mistrial) was inapplicable. Article 770 applies only to statements referring to the defendant’s failure to testify.

The defendant argues that the questions and answers, which included a reference to the defendant’s refusing to make a statement after his arrest, are prohibited by that article as a reference to his failure to testify. However, as used in Article 770, the word “testify” means to give testimony under oath at the trial.

The article was designed to protect a defendant against a comment by a judge, district attorney, or court official upon the defendant’s failure to take the stand at his trial. The right protected by Article 770’s remedy of automatic mistrial is the right to refrain from giving sworn testimony at the trial. Cf.: State v. Reed, La., 284 So.2d 574 (1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972); State v. Antoine, 189 La. 619, 180 So. 465 (1938).

The article does not mandatorily require mistrial because of any reference whatsoever to a pre-trial claim of the privilege against self-incrimination, although (see II) such may constitute error necessitating mistrial or admonition.

II.

Nevertheless, it is error for the prosecutor to comment upon the defendant’s exercise of his privilege against self-incrimination, or to elicit testimony thereas-to.

The defendant has a constitutional right to remain silent when under custodial arrest or interrogation (La.Constitution of 1974, Article 1, Section 13; United States Constitution, Fifth Amendment; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), and no adverse inference may be drawn from an accused’s exercise of his constitutional right to do so.

In federal prosecutions, evidence of the accused’s silence at the time of arrest constitutes reversible error due to its prejudicial impact and lack of probative value. U. S. v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). The Hale decision, it is true, enunciated an evidentiary rule and expressly did not reach the issue of constitutional principle of whether self-incrimination rights were violated by such evidence or comment.

For similar reasons, however, the same evidentiary rule should apply in Louisiana courts where evidence and prosecutorial comment is made as to an accused’s pretrial exercise against self-incrimination. We have long held that no adverse admission may be drawn from the defendant’s silence when held in custody under a criminal charge. State v. Hayden, 243 La. 793, 147 So.2d 392 (1962); 2 Marrs Criminal Jurisprudence of Louisiana, Section 551, p. 846 (1923).

As we long ago held in State v. Diskin, 34 La.Ann. 919, 921 (1882), reversing a conviction for somewhat similar error: “Mere silence, while a party is held in custody under a criminal charge, affords no inference whatever of acquiescene in statements of others made in his presence. He has the undoubted right to keep silence as to the crime with which he is charged, and is not called upon to reply to or contradict such statements.”

III.

In the present instance, the testimony and alleged comment upon the defendant’s exercise of his constitutional privilege occurred during the direct examination of the arresting officer by the prosecuting attorney. The arresting officer testified as to his interrogation of defendant Smith after he had been arrested and advised of his constitutional rights. In summarizing the immediately preceding testimony, the prosecutor’s question included a reference to the officer’s testimony that the accused “refused to give a statement.”

The defendant immediately objected. The sole ground of his objection was that a mandatory mistrial was required under La.C.Cr.P. art. 770. As we have held, the trial court was correct in overruling the motion for mistrial on this ground.

Nevertheless, as urged, the objection correctly noted that the effect of the testimony and question was nevertheless an improper comment upon the defendant’s exercise of his privilege against self-inerimi-nation. If the testimony and comment had the effect of depriving the defendant of a fair trial, he was therefore entitled to a mistrial under La.C.Cr.P. art. 771. At the least, the defendant was entitled to an admonition and cautionary instructions to the jury to disregard the evidence and comment, if he requested it. La.C.Cr.P. art. 771.

IV.

After the objection was overruled, no other evidence or comment of the prosecutor in the record refers to the defendant’s pre-trial silence. The trial as a whole was fairly conducted, the proof of guilt is strong, and the State made no use for impeachment of the defendant’s custodial silence.

We are therefore unwilling to hold that a mistrial is required because of the incidental and almost inadvertent (although improper) reference to the accused’s custodial silence in two lines of a 101-page trial transcript, especially in the absence of any indication of the deliberate intent of the State to inject or exploit the issue (and also considering the uncertainty (until this opinion) of the Louisiana jurisprudence as to this precise issue).

Although the issue is close, we thus for the reasons stated find no abuse of the trial court's discretion in its denial of a mistrial.

Decree

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

AFFIRMED.

SUMMERS, J., concurs.

CALOGERO, J., dissents with reasons.

DENNIS, J., dissents.

CALOGERO, Justice

(dissenting).

During the presentation of the state’s case-in-chief, both the arresting officer and the prosecutor commented upon Smith's election to remain silent after he was arrested. No doubt exists that defendant had the right, guaranteed by the fifth amendment, to refuse to make a statement to the police at that time. Miranda, v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964). When a prosecutor brings before the jury the fact that an accused chose to exercise that right by remaining silent when questioned 'by police, the conviction must be reversed. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); United States v. Bridges, 499 F.2d 179 (7th Cir. 1974); United States v. Kroslack, 426 F.2d 1129 (7th Cir. 1970); Baker v. United States, 357 F.2d 11 (5th Cir. 1966). As the court stated in United States v. Kroslack, supra:

“It was reversible error for the agent to testify that when the defendant was questioned he refused to make a statement. . . . The testimony elicited here could well have led the jury to infer guilt from the defendant’s refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty.” 426 F.2d at 1130—31.

See also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

There can be no question that the prosecutor’s use of Smith’s pre-trial silence infringed upon his fifth amendment privilege and rendered his conviction constitutionally infirm.

I respectfully dissent.

PER CURIAM.

In his motion for rehearing, defendant calls our attention to the decision of the United States Supreme Court in Doyle v. Wood, — U.S. -, 96 S.Ct. 2240, 49 L.Ed.2d 91, handed down on June 17, 1976. There, the Court held that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

We have reviewed the decision, and it does not alter our view that, under the circumstances of this case, no mistrial was required. In our opinion, the error was harmless beyond a reasonable doubt.

The motion for rehearing is denied.

CALOGERO, J., would grant a rehearing in this case.

DIXON, J.,

dissents from this per curi-am. The record in this case is convincing beyond a doubt that the error complained of, now held by the U. S. Supreme Court to be of constitutional proportions, was damaging to the defense.

DENNIS, J.,

dissents. The references to defendant’s choice to remain silent during police interrogation violated his rights under both the federal and state constitution.

      . However, lower federal courts have concluded that the mistrial should be based, not upon an evidentiary rule, but instead upon the violation of the accused’s Fifth Amendment right against self-incrimination. U. S. v. Bridges, 499 F.2d 179 (C.A.7, 1974) ; Kroslack v. U. S., 426 F.2d 1129 (C.A.7, 1970); Baker v. U. S., 357 F.2d 11 (C.A. 5, 1966).

      . See Tr. 66 of trial record:
      “Q. Now, what did you do when you got back to Alexandria with Mr. Smith?
      “A. Well, we attempted to — talk to Mr. Smith. We advised him of his rights, we signed him — got his rights waivers and all this stuff. We attempted to talk to him for — I would say probably (10) minutes. We didn’t get anywhere, so we booked him into City Jail.
      “Q. In other words, you were trying to interview him after you read him his rights and he refused to give a statement, is that— (Interrupted)
      “A. That’s correct.
      “Q. The gist of it, sir_Now you then did what?
      “A. Uh — we—like I say, we booked him into the City Jail. Again, he was advised of his rights and then he — an attempt to make his phone call.
      “By Mr. Yeager [defense attorney] : Objection, Your Honor. May the jury be removed?” (Italics ours.)

      . La.C.Cr.P. art. 771 provides:
      “In the following cases, upon the request of the defendant or the state, the court shall promotly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      “ (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      “(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      “In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”


text:
    James L. LARUE v. George R. COOK, Sheriff, Parish of Sabine and Hon. Jack E. Burgess, Judge, 11th JDC, Parish of Sabine, State of Louisiana.
    No. 58199.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re James L. Larue applying for Writ of Habeas Corpus.

Writ denied: The issue was decided adversely to the applicant on his appeal. State v. Larue, 324 So.2d 384 (La.1976). Our ruling in State v. Procell, 332 So.2d 814 (La.1976) is prospective only. See Linkletter v. Walker, 377 U.S. 930, 84 S.Ct. 1340, 12 L.Ed.2d 295.

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

CALOGERO, J., dissents from writ denial.


author: DIXON, J.,

text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 58499.
    Supreme Court of Louisiana.
    Sept. 9, 1976.
   In re: South Central Bell Telephone Co. applying for Writ of Certiorari.

Writ denied. There is insufficient showing of irreparable injury so as to warrant our exercise of supervisory jurisdiction.

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

DIXON, J.,

dissents from the denial. We should decide whether the company has the right to bond new rates pending the appeal from the commission’s order.


text:
    Dorothy CAIN et al. v. BOARD OF SUPERVISORS OF ELECTIONS, OUACHITA PARISH, Louisiana, et al.
    No. 58567.
    Supreme Court of Louisiana.
    Sept. 9, 1976.
   In re Dorothy Cain et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, 335 So.2d 711, Parish of Ouachita.

Writ denied. The judgment of the court of appeal is correct.

DENNIS, J., is of the view that the writ should be granted.


text:
    STATE of Louisiana v. Carlton G. PARSONS.
    No. 58225.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Carlton G. Parsons applying for writs of certiorari, mandamus and prohibition.

Writ granted. Hearing ordered on motion to suppress.


text:
    STATE of Louisiana ex rel. Jimmy Lee TILLMAN v. Ross MAGGIO, Warden.
    No. 58204.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Jimmy Lee Tillman, applying for writ of certiorari, and habeas corpus.

Writ granted. Evidentiary hearing ordered to determine if applicant was advised of right to counsel and the prevailing practice within the district at the time of the guilty plea.


text:
    STATE of Louisiana v. Pershing VERRETT.
    No. 58210.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Pershing Verrett applying for writs of review, prohibition, mandamus and stay order.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Joe Nathan TUBBS v. C. Paul PHELPS, Director, Louisiana Department of Corrections.
    No. 58147.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Joe Nathan Tubbs, applying for writ of certiorari.

Writ denied. There is no relief warranted.


text:
    STATE of Louisiana v. Huey Pierce LONG.
    No. 57981.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Huey Pierce Long applying for writ of habeas corpus.

Writ Granted: On the showing made at the ordered evidentiary hearing, See Docket No. 57862, March 23, 1976, La., 329 So.2d 469 no evidence was introduced which contradicts the absence of counsel in convictions in cases numbered 30559, 30560 and 30561, Ouachita Parish, See minute entry of October 11, 1957. Accordingly, those convictions are set aside.


text:
    STATE of Louisiana ex rel. Timothy W. KIDD v. Supt. J. D. MIDDLEBROOKS et al.
    No. 58256.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Timothy W. Kidd applying for writ of mandamus.

Writ denied. Applicant did not avail himself of all administrative remedies before applying to this court.


text:
    STATE of Louisiana v. F. J. MULLER, Jr.
    No. 58296.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: F. J. Muller, Jr. applying for writ of review.

Writ refused. The procedure followed here is not prohibited by law.


text:
    STATE of Louisiana ex rel. Dan E. ROBERTSON v. 24TH JUDICIAL DISTRICT COURT, JEFFERSON PARISH.
    No. 58425.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re: Dan E. Robertson, applying for writ of mandamus.

Writ refused. Since the charge has been nolle prossed and detainer withdrawn, this application is moot.


text:
    STATE of Louisiana v. Mattie HIGGINS.
    No. 58576.
    Supreme Court of Louisiana.
    Sept. 9, 1976.
   In re: Mattie Higgins, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. No showing that the trial court erred in finding that relator violated the conditions of her probation.


text:
    STATE of Louisiana v. Norris HENDERSON and Clarence Henderson.
    No. 58312.
    Supreme Court of Louisiana.
    Sept. 10, 1976.
   In re: State of La. through the District Attorney, Harry F. Connick, Orleans Parish, applying for writ of Certiorari.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph F. Becker, III, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 24th day of September, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: BOUTALL, Judge.

text:
    Edgar BANKSTON v. MERIT ELECTRIC, INC. and Northern Assurance Company of America.
    No. 7607.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied Aug. 31, 1976.
    Writ Refused Nov. 24, 1976.
    Gerald P. Webre and Alonzo T. Stanga, III, Metairie, for plaintiff-appellant.
    James H. Drury and Bradford H. Walker, of Drury, Lozes & Curry, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

This is a workman’s compensation case in which the sole issue is the extent of disability. Plaintiff, Edgar Bankston, sued for total and permanent disability arising from an industrial accident to his knee. The trial court granted plaintiff an award of permanent loss of bodily function and plaintiff has appealed. We affirm.

There is no issue in this case as to the accident being in the course and scope of plaintiff’s employment, this was stipulated to. The medical reports of plaintiff’s treating physician and an examining physician were also stipulated to. The only testimony given was that of plaintiff and his wife.

The plaintiff contends that the medical reports alone support his claim for total and permanent disability. Defendant contends that the plaintiff has failed to carry his burden of proof on the issue of the extent of his disability.

The medical reports show that plaintiff received a severe blow to his left knee. The blow tore loose the lateral collateral ligament in the knee. An operation was performed to correct this problem and it was successful. Plaintiff wore a cast for six weeks after the operation and thereafter a knee brace for six months. Eight months after the accident plaintiff was discharged by his treating physician, Dr. Davis, and assigned a 10% permanent physical impairment and loss of physical function to the lower left extremity.

Dr. Phillips saw the plaintiff once two years after the accident. His examination also revealed a permanent disability in the left knee which he ascribed as a 20% permanent impairment of function. Dr. Phillips added to his opinion that the plaintiff should not perform tasks which require him to climb to heights repetitively or work in a stooped position for long periods of time. He stated that plaintiff can perform these tasks but imposed these limitations because climbing and stooping would bring about degenerative arthritis more quickly.

The plaintiff and his wife testified that he resumed work as an electrician as soon as possible after the accident. Although he has worked as an electrician ever since, plaintiff claims that he works in substantial pain.

The trial court found plaintiff not to be totally disabled, but found a 20% permanent impairment of function of the left leg. In its Reasons for Judgment the trial court, while discussing the issue of pain while working, mentions the absence of testimony corroborating plaintiff’s testimony. Plaintiff alleges this to be error.

The medical reports are conclusive that plaintiff has sustained a permanent physical impairment of the left knee. However, the reports are inconclusive on the issue of total disability. Plaintiff sought to show, through the testimony himself and his wife, that his physical activities were much more restricted than the reports indicated and that he worked in pain. It is obvious, by the remarks of the trial court in its Reasons for Judgment, that the court found the plaintiff’s testimony not wholly convincing. In remarking on the absence of corroborative testimony the trial court was actually stating that it found plaintiff’s case lacking in a preponderance of the evidence. It is not that the court was assigning probative weight to evidence not in the record, but rather, that the court found plaintiff’s case lacking and was explaining the deficiency.

The record fully supports the judgment rendered by the trial court. We find no manifest error in the trial court’s disallowance of plaintiff’s claim for total and permanent disability.

For the above reasons the judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs.

AFFIRMED.

      . Plaintiff testified that, although he worked continuously after discharge by doctor, he did not complain of pain or inability to do the work at the three jobs he held after the accident. The reason he gave for not complaining on two jobs was fear of losing his job. The other job was starting a business and working with his father and brother, neither of whom testified. The trial judge pointed out that the reason of fear of loss of job did not exist there.


author: STOULIG, Judge.

text:
    Milton P. MASINTER v. M. Cordill GRUNEWALD.
    No. 7542.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 31, 1976.
    Writ Refused Nov. 24, 1976.

      Porteous, Toledano, Hainkel & Johnson, Ben C. Toledano, E. Ross Buckley, Jr., New Orleans, for plaintiff-appellee.
    Miranne & Grevenberg, Lee C. Grevem-berg, New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

The issue presented by this appeal is the value of legal services rendered to defend a client whose son was booked by New Orleans police on five counts of possession or distribution of LSD and heroin.

Defendant’s son was arrested in early November 1971 and booked on five counts: three for distribution of LSD, one for possession of heroin and one for possession of LSD. Having no previous arrest record, the youth was released on a $7,500 cash bond. On November 11, 1971, plaintiff was retained by defendant, M. Cordill Grü-newald, acting through his own attorney who did not practice criminal law. Plaintiff arranged to have the cash bond returned by obtaining an order from one of the criminal court judges releasing the youth on his own recognizance. By the time of the arraignment on November 14, 1971, the district attorney, after conferring with plaintiff, agreed not to accept three of the five charges. Although young Grü-newald entered a plea of not guilty to the other two charges, it was understood by prosecutor and defense counsel that he would change the plea to guilty, receive a suspended sentence and be placed on probation, provided he obtained psychiatric treatment. The guilty pleas were entered December 20, 1971. Plaintiff estimated this representation required a total of between 40 and 45 hours.

Having accepted a $1,500 retainer and having advised Grünewald the fee might be substantial because of the seriousness o.f the charges, Masinter sent a statement for $16,000 as the balance due. Grünewald protested the charge was exorbitant. In the ensuing months, according to plaintiff, the litigants met and verbally agreed to compromise the remaining amount due at $11,000. When Masinter was not paid, he filed suit on the alleged contract of compromise; however, during the course of the trial he amended his pleading to alternatively request the full $17,500. After the first trial, judgment was rendered for $11,000. Defendant appealed and we annulled the judgment because the alleged compromise agreement had not been reduced to writing and under C.C. art. 3071 was not enforceable. We did not set a fee under the alternative quantum meruit claim. We noted that while there was testimony as to the extent of the service, there was insufficient evidence to establish value. Therefore we remanded this matter to permit both litigants to adduce evidence on that point.

The four experts called by plaintiff all agreed that the result in a criminal case was the paramount consideration and that plaintiff obtained remarkable results by keeping young Grünewald out of jail considering the seriousness of the charges. They minimized the time factor as a consideration in setting fees. All credited the successful result to plaintiff’s experience and his contacts within the criminal justice system. Thus they felt a fee of $17,500 for the result obtained was fair and reasonable. One expert candidly conceded that fees in criminal cases are generally set on a “what the traffic will bear” basis. The other three, using semantic niceties to describe this practice, in effect also conceded the economic condition of the client to a large extent determined what fee would be charged.

It was the experts called by plaintiff that impressed the trial judge and accordingly he awarded Masinter the $16,000 he demanded.

We note with interest plaintiff valued his own service in this case at $2,500 per count. Even though his experts testified it would have been reasonable for him to charge $17,500, we conclude he is bound by his own measure of the worth of his services. Once the contract of compromise was not recognized, this suit became one in quantum meruit. We quote the testimony we think limits plaintiff to a fee of $12,500:

“Q Now, getting back, Mr. Masinter, how did you arrive at the fee of 175?
A Well, there was five cases, I usually charge anywhere from $2500 to $5000 per charge, I charged a minimum of $2500 times five, that’s what it comes out to $17,500, and I feel when I accept a case, when I accept a case it’s to dispose of it as advantageously for my client as I can and I don’t take a case on whether the charge is not accepted by the District Attorney’s office or if I go to trial or win it or lose it.
Q So your custom is to charge $2500 per charge?
A Minimum, you know, I’d have to recompute it, I don’t have a computer here, but that’s a minimum on narcotics cases.
Q Well, five times 25 by my arithmetic is 125.
A Well, I just said if I made a mistake, I made a mistake, whatever it is that computes out to 175, I don’t have pencil and paper here, that’s the way it was done.” (Emphasis added.)

It is plaintiff’s burden to establish the value of his services by a preponderance of the evidence. He unequivocally stated he charged the minimum of $2,500 per count and then he multiplied incorrectly. When the error was called to his attention, he answered he made a mistake and then stated he charged whatever multiplied by five equalled $17,500. This does not clarify his original statement. We will amend the judgment to award the fee plaintiff set with his own testimony.

For the reasons assigned, the judgment appealed from is amended to reduce the award from $16,000 to $12,500, subject to a credit of the payment of $1,500, and, as amended, affirmed.

AMENDED AND AFFIRMED.

      . Total fee of $17,500 less $1,500 retainer.

      . $12,500 less $1,500 retainer.


author: REDMANN, Judge.

text:
    BORO INDUSTRIES, INC. v. JAMES J. CULOTTA, INC.
    No. 7441.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied Aug. 31, 1976.
    Writ Refused Nov. 19, 1976.

      Joseph E. Friend, Dodge, Friend, Wilson & Spedale, New Orleans, for plaintiff-appellant.
    Harold J. Zeringer, Jr., Zeringer & Zeringer, New Orleans, for defendant-ap-pellee.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

Plaintiff delivered $21,547.48 of cabinets to a Mississippi apartment project and was paid only $19,494.24. It now appeals from the dismissal of its demand for the $2,053.-24 balance against a corporation and an individual alleged to be a guarantor. We reverse as to the corporation.

The suit began as an action against the corporation alone for an account balance. An amendment to the petition alleged a written contract, guaranteed by the individual, with the same balance due. If taken literally, the supplemental petition would have substituted the contract claim for, rather than added it as an alternative to, the action on the account. But neither the parties nor the trial court took this literal view: for example, the parties stipulated the account balance (which exceeds the contract balance). We therefore treat the case as presenting both claims alternatively.

The individual defendant, James J. Cu-lotta, was president and majority shareholder of James J. Culotta, Inc. and of Tide Rock Village Apartments, Inc. Culot-ta Inc. was in the construction business. Tide Rock, a Mississippi corporation, owned land in Biloxi upon which apartments were being constructed, apparently by Culotta Inc. (A construction loan and mortgage agreement between Tide Rock and a lender separates “owner” from “contractor” without identifying the contractor; Culotta Inc. did by its check pay for part of the cabinet bill.)

Culotta caused the preparation by plaintiff’s salesman of a purchase contract form for 118 sets of cabinets. The buyer was identified in typewriting as “James J. Cu-lotta”, to which was added in hand-lettering "Construction Co. Inc.” The contract showed “Job at Tide Rock Apartments, Biloxi.” Culotta signed that contract in a blank headed “Payment guaranteed by”. Culotta did not there limit his signature by showing any representative capacity; and he did not anywhere else sign for any corporation.

There is no “James J. Culotta Construction Co., Inc.” Yet the inference is that Culotta objected to his own name being recited as that of the buyer; that the buyer was intended by both parties to be a corporation for which Culotta was acting. That corporation cannot have been Tide Rock, which the contract described only as the job-site. It is more probable than not that “James J. Culotta Construction Co. Inc.” intended to name “James J. Culotta, Inc.”

Similarly the account plaintiff carried identified its debtor as “James J. Culotta Const.”

We conclude that the person intended to be buyer by both seller and (through its president) itself was James J. Culotta, Inc., both as to the contract and as to purchases in addition to those specified by the contract.

The trial judge dismissed on the ground that plaintiff’s home office never did formally accept the contract, which specified that it was “subject to acceptance of home office.” This was error. The contract was accepted (and undisputedly performed) by shipping the cabinets. The contract price was due — and all of it but $455.22 was paid.

Because suretyship is a promise to pay the debt of a third person, C.C. 3035, it must be in writing to be provable, C.C. 2278(3). Moreover it must be explicit, C.C. 3039. The “Payment guaranteed by” writing signed by Culotta individually is express at to payment of that written contract’s $19,949.46, but it does not oblige Culotta as surety on any additional purchases. His liability is therefore limited to any balance of the contract price.

The principal obligor, Culotta Inc., has no such limitation. The parties stipulated that the balance on the account is $2,053.24. Culotta Inc. is liable for that amount (which includes the $455.22 contract balance) unless its defense of defectiveness of the cabinets reduces that liability.

Plaintiff’s salesman agreed that “many of the cabinets were delivered without or with incorrect hardware, that many of the doors had to be rehung or readjusted, that many of the panels had to be replaced, and that a considerable amount of adjustment to the equipment was necessary before the cabinets could be installed.” Defense testimony of the cabinets’ causing 60 days of delay in construction, however, is incredible. The credible proof of the cost of correcting the problems is little more than an hourly wage rate and the need for a substantial number of hours of work. We estimate less than an hour for each apartment, and allow a total of $500, to include any necessary hardware.

We therefore conclude that nothing is due on the contract, so that neither is the guarantor liable at all nor is Culotta Inc. liable for the stipulated 10% interest and 20% attorney’s fees.

The judgment is reversed as to Culotta Inc. and there is judgment for plaintiff against Culotta Inc. for $1,553.24 with legal interest from February 7, 1973 and all costs.