author:
MARCUS, Justice.
      CALOGERO, Justice,

text:
    STATE of Louisiana v. Donald LOVETT.
    No. 61277.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      James A. McPherson, McPherson, Weber & Zainey, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., Michael S. Fawer, Special Counsel to the Atty. Gen., New Orleans, for plaintiff-appellee.
   MARCUS, Justice.

Donald Lovett was indicted in two separate counts for the crimes of aggravated criminal damage to property in violation of La.R.S. 14:55 and conspiracy to commit aggravated criminal damage to property in violation of La.R.S. 14:26. After trial by jury, he was found guilty as charged on both counts. On his conviction for conspiracy to commit aggravated criminal damage to property, defendant was sentenced to serve seven and one-half years at hard labor, and, on his conviction for aggravated criminal damage to property, to serve fifteen years at hard labor, which sentences were to run consecutively with each other and with any other sentence imposed on defendant by a federal court in Louisiana. Defendant was given credit toward service of his sentences for time spent in actual custody prior to imposition of sentences. On appeal, defendant relies on thirteen assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in permitting the state, over defense objection, to amend the indictment so as to charge him in two separate counts with the crimes of conspiracy to commit aggravated criminal damage to property and the completed offense of aggravated criminal damage to property. He argues that the indictment as amended was invalid.

The record reflects that defendant was originally charged by the grand jury in the same indictment with four separate counts of conspiracy to commit aggravated damage to property. Defendant was also charged in another grand jury indictment with three separate counts of the completed offense of aggravated criminal damage to property. Approximately five months prior to the commencement of trial, the state moved to amend the four-count conspiracy indictment by adding thereto the three counts of aggravated criminal damage to property charged in the second indictment. Defendant’s objection to the amendment was overruled. Reading of the amended indictment was waived, and a plea of not guilty was entered. Time was set for defendant to file any special pleadings. Defendant then moved to quash the amended seven-count indictment alleging, inter alia, that the first four counts of conspiracy were multiplicious in that the first three counts were nothing more than an itemization of the property covered by the general allegation in the fourth count. At the hearing on the motion to quash held about four months prior to trial, the state again moved to amend the indictment by reducing the seven counts to two counts. The trial judge allowed the amendment. The amended two-count indictment charged defendant in count one with conspiracy to commit aggravated criminal damage to property and in count two with the completed offense of aggravated criminal damage to property. The minutes reflect that defense counsel objected to the amended indictment only for the purpose of reserving his right to file respective pleadings thereto. Defendant was rearraigned on the amendment indictment. No motion to quash the amended indictment was subsequently filed.

It is well settled that a prosecutor may make substantive amendments to a grand jury indictment. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Gilmore, 332 So.2d 789 (La.1976); State v. Bluain, 315 So.2d 749 (La.1975); State v. Fitzgerald, 248 La. 487, 179 So.2d 906 (1965). An amendment to an indictment which relates to a defect of substance is properly allowed before trial begins. La.Code Crim.P. art. 487; State v. Bluain, supra; State v. Hubbard, 279 So.2d 177 (La.1973). A jury trial commences when the first prospective juror is called for examination. La.Code Crim.P. art. 761.

In the instant case, the original indictment by the grand jury charging defendant with four counts of conspiracy was amended by the state prior to trial to add thereto the three counts of the completed offense previously charged in the second grand jury indictment. The amendment was one of substance which the state was empowered to make prior to the commencement of trial. Thereafter, to cure an alleged deficiency in the seven-count indictment in that the first four conspiracy counts charged therein were multiplicious, the state again amended the indictment to charge defendant in one count with conspiracy to commit aggravated criminal damage to property and in a second count with the completed offense. Because this substantive amendment was made by the state prior to trial, it was correctly allowed by the trial judge. Hence, since the amendment to the indictment was valid, the trial judge properly overruled defendant’s objection to the amended indictment.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in sustaining the state’s objection to a defense question on the ground that it called for an opinion and/or conclusion on the part of the witness.

Robert D. Kerley, a state witness, testified that a few days prior to the commission of the instant offenses at the Jupiter Chemical Company plant site, he had observed defendant drive slowly past the plant site at approximately five miles per hour, turn his vehicle around, proceed past the site again, stop and then drive away. During cross-examination, the witness denied that he had heard defendant deliver any threats at that time but continued that “. when a guy drives by your job going about five miles an hour, he is sure casing the place out.” Defense counsel then asked the witness:

Q. Was he driving slow enough so that he could look at that and observe and see what was going on and determine how much activity, how many people were working?

The trial judge sustained the state’s objection to the form of the question as calling for an opinion on the part of the witness. Thereafter, defense questioning was resumed whereupon the witness denied that he knew why defendant had driven slowly past the plant site.

This court has consistently held that, with rare exception, a witness can testify only as to facts within his knowledge. He may not testify as to any impression or opinion that he may have. La.R.S. 15:463; State v. George, 346 So.2d 694 (La.1977); State v. Batiste, 318 So.2d 27 (La.1975); State v. Kirklin, 283 So.2d 713 (La.1973); State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972). The thrust of the question propounded by defense counsel in the instant case was to call for a speculative opinion on the part of the witness as to the reason for defendant’s driving slowly past the plant site. The speculative testimony which would have been elicited in response to the disputed question would, therefore, have been incompetent. La.R.S. 15:463; State v. George, supra; State v. Batiste, supra; State v. Kirklin, supra. Hence, the trial judge properly sustained the state’s objection to defendant’s question. In any event, the witness subsequently testified that he did not know the reason why defendant had driven slowly past the plant site. Defendant, therefore, was not prejudiced by the ruling of the trial judge.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in refusing his request for production of a prior statement made by state witness John Jensen, Jr., for purposes of impeachment.

At trial, John Jensen, Jr., testified on behalf of the state that defendant had instructed him to kill Shorty Landry, a member of a multicraft labor organization. Thereafter, on cross-examination by defense counsel, the witness admitted that he had made a prior statement to members of the Calcasieu Parish Sheriff’s Office while he was in parish prison. Defense counsel requested production of this prior statement. The request was denied by the trial judge on the ground that a proper foundation had not been laid. The witness was then questioned as to whether his prior statement differed from his testimony at trial to which the witness responded that some of it did. Again, defense counsel urged his request for production of the statement which was likewise denied. Thereafter, the witness was asked by defense counsel whether in his prior statement he had related that defendant had told him to kill Shorty Landry. Jensen responded that he had not included that fact in his prior statement since he did not think of it when he gave the statement to the police. At this time, the request for production of the witness’ prior statement was reurged by defense counsel but was again denied by the trial judge.

' At the time of the trial, a defendant is not entitled to production of a pretrial statement of a state witness unless the proper foundation has been laid for impeachment. This is accomplished when the witness denies making the statement or a showing is made that one or more of the material statements therein are contrary to the sworn testimony. La.R.S. 15:493; State v. Adams, 302 So.2d 599 (La.1974); State v. Curry, 262 La. 616, 264 So.2d 583 (1972); State v. Nails, 255 La. 1070, 234 So.2d 184 (1970). In the instant case, although the witness admitted that he had given a prior statement to the police while he was in custody, he testified that he had not included in the statement the fact that defendant had instructed him to shoot Shorty Landry. Therefore, there was no genuine conflict on this matter between the witness’ testimony and any facts related in his prior statement. Moreover, the witness admitted that his prior statement differed in some respects from his testimony at trial. Hence, a proper foundation was not laid for use of his prior statement for impeachment purposes at trial. La.R.S. 15:493. Defendant was not entitled to production of the witness’ prior statement. The ruling of the trial judge was correct.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in permitting defense witness Hollis Midkiff to testify on cross-examination regarding statements made to him by Butch Clark who did not appear at trial. He argues that this testimony constituted inadmissible hearsay evidence.

Hollis Midkiff, a business manager for a local union, testified on behalf of defendant. He stated that on the morning of January 14, 1976, he had attended a meeting of the Southwest Louisiana Building and Trades Council at which defendant advocated the use of peaceful picketing at the Jupiter Chemical Company plant site. The proposal was approved by the council. On cross-examination by the state, Midkiff stated that, on the afternoon of that same day, Butch Clark, an assistant business agent, arrived at his office. Without objection, the witness testified that Clark had told him that earlier that afternoon he had walked in on a meeting attended by defendant and a few business agents and that he had overheard defendant say, “[W]e will get the guard first.” After further cross-examination concerning what Clark had related to him, the witness was subsequently asked which individuals Clark had told him were present at this meeting. For the first time, defendant objected to the prosecutor’s question on the ground of hearsay. The objection was overruled by the trial judge.

It is well settled that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of its occurrence. La.Code Crim.P. art. 841; State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976). In the instant case, defendant’s hearsay objection to the state’s questioning of the witness regarding what was related to him by Clark came too late since it was not urged until after the prosecutor had extensively cross-examined the witness on this subject. Hence, defendant may not avail himself of the alleged error on appeal. La.Code Crim.P. art. 841; State v. Brown, 354 So.2d 516 (La.1978); State v. Wientjes, 341 So.2d 390 (La.1976); State v. Hillman, 298 So.2d 746 (La.1974); State v. Kelly, 262 La. 143, 262 So.2d 501 (1972).

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 11

During closing argument to the jury, the prosecutor argued that the state had proven that defendant conspired with other individuals, both identified and unknown, to commit aggravated criminal damage to property by fomenting labor violence at the Jupiter Chemical Company plant site. In furtherance of this conspiracy, local union members, at the direction of defendant and other business agents of various local unions, perpetrated violence at the-plant site. He continued that, although a number of business agents had testified at trial on behalf of defendant that members of their locals were not present at the plant site at the time of the violence, other business agents whose men were there did not testify at trial. The prosecutor then posed the following rhetorical question to the jury:

Where were the business agents whose men did show up and did do the maiming and the killing?

Immediately, defense counsel objected to the prosecutor’s remark arguing that it constituted a comment on defendant’s failure to produce evidence which was improper since the state is the only party with a burden of proof to meet. The trial judge overruled the objection but admonished the jury that the arguments of counsel were merely their appreciation of the evidence presented at trial and that the jury was to decide the case solely on the evidence adduced at trial and not on the basis of the state’s or defendant’s closing argument. Defendant assigns as error the ruling of the trial judge.

We do not construe the prosecutor’s remark as a comment on defendant’s failure to produce witnesses at trial. Rather, the remark was directed to the lack of evidence presented by defendant to refute the state’s evidence which established that the violence at the plant site had been perpetrated by local union members in furtherance of defendant’s conspiracy to commit aggravated criminal damage to property. Pursuant to La.Code Crim.P. art. 774, the closing argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. Since the prosecutor’s remark was directed to the lack of refuting evidence presented by defendant, it was clearly within the scope of the above provision. In any event, the trial judge’s admonition to the jury cured any possible prejudice resulting from the remark.

Assignment of Error No. 11 is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant contends the trial judge erred in refusing to give a requested special charge to the jury which provided:

An alibi is evidence of the fact that the defendant was not present at the time when or at the place where he is alleged to have committed the offense charged in the Bill of Information.
The testimony and evidence in support of an alibi should be considered in connection with all the other evidence in this case; and if, after consideration of all the evidence in the case you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, the defendant should be acquitted.

It is well established that a trial judge is required to give a requested special charge only when the charge is wholly correct and pertinent. La.Code Crim.P. art. 807; State v. Progue, 350 So.2d 1181 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. James, 339 So.2d 741 (La.1976). In the instant case, defendant’s requested special charge was not a correct statement of the law. Pursuant to La.R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are guilty as principals. State v. Willis, 322 So.2d 169 (La.1975); State v. Broussard, 312 So.2d 325 (La.1975). In his general charge, the trial judge properly instructed the jury to this effect. Moreover, defendant was charged with conspiracy to commit aggravated criminal damage to property, as well as with the completed offense, which conspiracy was committed when he and one or more individuals combined for the specific purpose of committing the completed offense and one or more of the parties did an act in furtherance of the object of the agreement or combination. Hence, defendant could be found guilty of the crime of conspiracy without his being present when the completed offense, which was the object of the conspiracy, was committed. Since defendant’s requested special charge was not wholly correct, the trial judge properly refused to give it.

Assignment of Error No. 12 has no merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in denying his motion for a new trial grounded on the claim that he had discovered after trial, notwithstanding the exercise of reasonable diligence, new and material evidence consisting of pretrial statements of Butch Clark and affidavits of five members of the Millwrights’ Local Union which documents contradicted the trial testimony of Hollis Midkiff elicited on cross-examination by the state. He first argues that, if this evidence had been available to him at trial, it would probably have changed the verdict of guilty. He also argues that this evidence, which the state had in its possession prior to trial, constituted evidence favorable to the defense which the state was obligated to disclose.

At trial, Hollis Midkiff, the business manager of the Millwrights’ Local Union, testified on behalf of the defense. On cross-examination, he testified that Butch Clark, an assistant business agent for a local union, had related to him that he (Clark) had walked in on a meeting attended by defendant and other business agents and had heard defendant say, “[W]e will get the guard first.” Midkiff further testified that defendant’s statement had concerned him and he, therefore, had instructed some members of the millwrights’ union to leave the Jupiter Chemical Company plant site if labor violence erupted.

At the hearing on the motion for a new trial, defense counsel asserted that he had discovered after trial that Butch Clark had given a statement on August 3, 1976 to members of the district attorney’s and attorney general’s offices which was favorable to the defense in that it contradicted Midkiff’s testimony on cross-examination. He further claimed that this statement had been in the state’s possession prior to trial but had not been disclosed to the defense. The state admitted possession of this statement as well as a memorandum of an interview with Clark, both of which it had possessed prior to trial and had not disclosed to the defense. Defense counsel argued that he was entitled to production of these documents and the prosecutor’s failure to disclose them to the defense prior to or during trial required the granting of a new trial. In these documents, Clark stated that he had attended a meeting on January 14, 1976, at which defendant and five or six other business agents of various local unions were present and had heard defendant say that, “[W]ell, if he [the guard] gives our people trouble, well we will just turn the shack over with him in it, but he ain’t going to fool with out (sic) people, because our people are out there peaceful.” Clark further stated that defendant’s statement had made him “real nervous” and he subsequently related it to Midkiff who told him that he must have misunderstood what defendant had said.

Additionally, defense counsel asserted in support of his motion for a new trial that he had discovered since trial other new and material evidence consisting of affidavits of five members of the Millwrights’ Local Union in which they stated that they had reported to work at the Jupiter Chemical Company plant site at Midkiff’s direction on the day that the labor violence occurred. Defense counsel argued that this evidence further contradicted Midkiff’s testimony on cross-examination, thereby indicating that Midkiff had perjured himself, and warranted the granting of a new trial. At the conclusion of the new trial hearing, the trial judge denied defendant’s motion.

La.Code Crim.P. art. 851 dictates that the court, on motion of the defendant, shall grant a new trial whenever:

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty; . . .

This court has consistently held that the trial judge is accorded considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its reliability, and his ruling will be disturbed on appeal only where there is a clear showing of abuse of discretion. In considering a motion for new trial based on newly discovered evidence, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Provost, 352 So.2d 661 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Brown, 338 So.2d 686 (La.1976).

First, we find no merit to defendant’s contention that the pretrial statements given by Clark constituted evidence favorable to the defense which the state improperly had failed to disclose. It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material to either guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Cass, 356 So.2d 936 (La.1977); State v. Williams, 349 So.2d 286 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977). However, the record in the instant case does not demonstrate that the statements given by Clark were in any way favorable to the defense. In fact, the record clearly reveals the contrary since in the pretrial interviews Clark had attributed to defendant a statement to the effect that, if the guard interfered with the activities of the union members on the plant site, they would “turn the shack over with him in it.” Hence, the state was not required to disclose Clark’s statements to the defense. Moreover, this evidence did not contradict Midkiff’s testimony elicited at trial on cross-examination and, therefore, was not so material that it would have produced a different result than the verdict reached.

Nor do we consider the affidavits of the members of the Millwrights’ Local Union to be evidence so material that it would have produced a different result than the verdict reached. This evidence, which indicated that members of the Millwrights’ Local Union had gone to work at the plant site at Midkiff’s direction on the day the labor violence erupted at the plant site, in no way contradicted Midkiff’s testimony on cross-examination wherein he stated that he had instructed some of the millwrights to leave the plant site if violence erupted. Nowhere in his testimony did the witness state that he had ordered members of the labor union not to go to work at the plant site on the day the labor violence occurred. Furthermore, this evidence could not have been introduced by defendant at trial to contradict the testimony of Midkiff, a defense witness, since a party may not impeach his own witness, except under certain circumstances, and even then the impeachment is limited to evidence of prior contradictory statements. La.R.S. 15:487. Nor was the state required to disclose this evidence to defendant prior to or during trial since it was not evidence favorable to the defense.

In sum, we conclude that the trial judge did not abuse his discretion in denying defendant’s motion for a new trial. Assignment of Error No. 13 is without merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent because I would find merit in defendant Lovett’s sixth assignment of error. Under our jurisprudence in State v. Weston, 232 La. 766, 95 So.2d 305 (1957) and State v. Nails, 255 La. 1070, 234 So.2d 184 (1970), defendant Lovett was due production of the prior statement to police made by state witness John Jensen, Jr. The attempt to change the Weston-Nails rule which was made in State v. Babin, 319 So.2d 367 (La.1975) came in a majority opinion which at best bore the assent of only two justices of the Court and at worst had no value at all because the judgment was reversed on rehearing on other grounds. Under Weston and Nails, once a defendant has established an inconsistency between a witness’ testimony and his prior statement, production of the prior statement must be ordered. I disagree with the majority conclusion in this case that there is no inconsistency between this witness’ statement to police and his trial testimony simply because the prior statement made no mention of the fact the witness pressed home at trial, namely, that he had been instructed by defendant to kill Shorty Landry. I believe that under Weston and Nails the defendant had established an inconsistency sufficient to require production of the prior statement.

      . The crime charged herein is alleged to have occurred on or about January 15, 1976. La.R.S. 14:26 was amended by La. Acts 1977, No. 538, § 1, eff. Sept. 9, 1977. Hence, the new statute is not applicable to the instant prosecution.

      . In brief to this court, defendant has expressly abandoned Assignments of Error Nos. 2, 4, 5, 7, 9 and 10. Hence, they are no longer before this court for review.

      . The affidavits of the five members of the Millwrights’ Local Union (D-3, D-4, D-5, D-6 and D-7) which were received in evidence at the hearing on the motion for a new trial do not appear in the record. Despite requests of all parties concerned, the affidavits received in evidence could not be located. We have stated the content of these affidavits as gleaned from the arguments of counsel at the new trial hearing and their briefs to this court. (Photocopies of two of the five affidavits were attached to the state’s supplemental brief.) There seems to be no real dispute as to their content.


source: Caselaw Access Project

author: DENNIS, Justice. DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Dennis TERRY.
    No. 61288.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Carey J. Ellis, Jr., Ellis & Ellis, Rayville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Dennis Terry, was convicted of simple burglary, La.R.S. 14:62, and sentenced to six years at hard labor. On appeal he relies upon one assignment of error which was taken when the trial court denied his motion for a continuance filed on the day of the trial.

Defendant was charged with the burglary of a Western Auto Store in Rayville. He was extradited from the state of California and arrived in Richland Parish on June 15, 1977. Immediately upon his return the court appointed counsel to assist him in his defense. Defendant was arraigned on June 29, 1977 and pleaded not guilty. At this time trial was set for October 11, 1977. On August 19, 1977 defendant’s initial counsel was replaced with another appointed attorney in response to a motion filed by his initial attorney alleging that defendant would not cooperate with him. Sometime before the end of August, defendant’s present attorney conferred with his initial counsel and learned that one or two letters had been written to potential alibi witnesses in defendant’s home town, Montclair, New Jersey. After a conference with the defendant on September 9, his present attorney wrote and mailed fourteen letters to potential alibi witnesses in Montclair, New Jersey on September 12.

On October 11, 1977, the day trial was to begin, the defendant moved for a continuance based on the absence of material witnesses. The written motion and defense counsel’s oral statement at the hearing on the motion indicated that the attorney had located two witnesses in New Jersey who were expected to give testimony supporting defendant’s alibi and that defendant had given him the names of other persons there who possibly would corroborate the alibi. The trial judge denied the motion on ground that there had been ample time to prepare for defense in the case. The Louisiana Code of Criminal Procedure Article 709 provides:

“A motion for continuance based upon the absence of a witness must state:
“(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity of the presence of the witness at the trial;
“(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
“(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

Generally, the “due diligence” requirement of Article 709 is not satisfied when defense counsel fails to have the potential witness subpoenaed. State v. Bennett, 341 So.2d 847 (La.1977); State v. Larue, 324 So.2d 384 (La.1975); State v. Elias, 230 La. 498, 89 So.2d 51 (1956), and cases cited therein. In this case, notwithstanding his failure to subpoena the witnesses, the defendant argues that he exercised due diligence in an effort to discover and procure the witnesses. Defense counsel testified that he had written letters to the potential witnesses on two occasions, first, on September 12, and again on September 29. Apparently, after receiving poor response from his first mailing, defense counsel wrote the same persons again by certified mail with return receipts requested. He further testified that he had received responses from two of the potential witnesses stating that they could give testimony favorable to the alibi defense. On the day of the trial, however, defense counsel had failed to subpoena any of the witnesses. The correct procedure would have been for the defendant to subpoena the witnesses expected to testify favorably pursuant to Louisiana Code of Criminal Procedure Article 741, which provides the method of obtaining witnesses from outside the state. Therefore, the facts do not show that due diligence was used in an effort to procure the attendance of the two witnesses expected- to testify to facts supporting the alibi defense. As to the other prong of defendant’s motion, the request for additional time within which to communicate with the other potential witnesses in New Jersey who had not responded to defense counsel’s letters, the motion for continuance and supporting oral statement did not comply with the law because they did not state the facts to which these witnesses were expected to testify or facts and circumstances showing a probability that they would be available at any time to which the trial could have been deferred. La.C.Cr.P. art. 709(2) and (3).

The granting of a motion for a continuance is a matter addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a clear showing of abuse of discretion. State v. Bennett, 341 So.2d 847 (La.1977); State v. Weathers, 304 So.2d 662 (La.1974); State v. Navarre, 289 So.2d 101 (La.1974).

For the reasons assigned we conclude that there was no abuse of discretion by the trial judge in denying the defense motion for a continuance.

Accordingly, the defendant’s conviction and sentence are affirmed.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent, believing there was an abuse of discretion in denying the continuance.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Donald COLLINS.
    No. 61294.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      William J. O’Hara, III, Supervising Atty., New Orleans, Kim Allison Gandy, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry P. Julien, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Donald Collins, with armed robbery, a violation of LSA-R.S. 14:64. The jury returned a guilty verdict. The court sentenced him to forty years imprisonment.

The defendant appeals. He relies on five assignments of error for reversal of his conviction and sentence. As he failed to brief or argue Assignment of Error No. 4, we consider it abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

As Alvin Richards drove his car, the defendant (a neighbor) called to him. Richards pulled over and the defendant entered. He pointed a sawed-off shotgun at Richards and directed him to drive. After traveling about one mile, the defendant ordered Richards out. Then, the defendant drove off in Richards’ car.

ASSIGNMENT OF ERROR NO. 1

The defendant complains of the denial of a motion in arrest of judgment, in which he alleged that “the Court improperly refused to accept [his] plea of guilty to the agreed lesser charge [simple robbery], and allowed the' untimely jury verdict to be entered.”

Approximately two hours after the jury had begun deliberations, the State and defense counsel began plea negotiations in the judge’s chambers. The parties discussed three factors: the possibility of the jury returning a verdict prior to the defendant’s entering a plea; the procedural aspect of the declaration of a mistrial before or after the defendant pled guilty; and the conditions of the plea.

The judge stated that if the jury returned a verdict prior to the defendant’s entering a plea, he would accept the jury’s verdict in lieu of the plea.

Defense counsel requested that the court declare a mistrial before the defendant pled guilty, and that he plead guilty out of the presence of the jury. Based on his experience of defendants refusing to plead guilty at the last moment (even after signing the Boykinization form), the judge stated that he would require the defendant to formally enter a plea before he called the jury in and declared a mistrial. However, the judge would not require the defendant to plead before the jury.

The State, in exchange for a guilty plea to simple robbery, offered the defendant ten years imprisonment. The defendant rejected it. The State then asked if he would accept five years imprisonment. The defendant indicated that he would; however, the State refused to extend that offer. The State then proposed seven years imprisonment and the defendant orally accepted it. At first the judge approved it, but “about thirty seconds later” he stated that he would only approve the plea if the defendant agreed to the maximum penalty for simple robbery, ten years. When he said this, defense counsel had already left the room and began to fill in the printed plea bargain form. Simultaneous with the judge’s statement, he was informed that the jury had reached a verdict. When defense counsel learned that the jury had returned, he had only placed the defendant’s name and the crime to which he was to plead guilty on the plea bargain form.

Over defense objection, the judge refused to entertain the plea and received the guilty verdict from the jury.

The defendant avers that the seven-year plea is binding on the court. He argues that the plea bargain was complete, subject only to the court’s Boykinization of the defendant. Further, he analogizes the situation to the civil law concepts of offer and acceptance, and of compromise and settlement.

A trial judge is under no duty to accept a plea bargain that restricts his sentencing authority. This Court may not review his action. State v. Williams, La., 341 So.2d 370 (1976). The trial judge stated that he would accept the verdict of the jury if the jury returned prior to the defendant’s entering a plea. When the jury returned, the plea bargain had not been consummated or the plea tendered. At that point, the “plea bargain” was in the following posture: the court had stated that it would only accept a bargain subjecting the defendant to ten years imprisonment; the defendant had, moments before, rejected an offer of ten years; the defendant had not pled guilty or signed a plea bargain form; and the court had not questioned the defendant as to the voluntariness of the plea. Under these circumstances, we find no error in the trial judge’s acceptance of the jury verdict. Thus, the court’s denial of the motion in arrest of judgment was proper.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant alleges that “[t]he trial court committed reversible error when it denied [his] motion for new trial, based on the trial court’s refusal to allow a juror to volunteer information concerning her possible prejudice [that she was the victim of a similar crime].”

An allegation concerning the competency of a juror is tardy when first raised after the verdict. See LSA-C.Cr.P. Art. 841. It is not the proper subject for a motion for a new trial. See LSA-C.Cr.P. Art. 851.

In any event, during oral argument to this Court, both parties stated that the juror was acceptable on all other bases. The declaration of an otherwise fair and impartial juror that she was previously the victim of a crime similar to that which the defendant stands charged does not render her incompetent to serve. See State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966); State v. Martinez, 220 La. 899, 57 So.2d 888 (1952). Thus, the defendant was not prejudiced by the court’s ruling which prevented the juror from stating that she was the victim of a similar crime.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant complains that the trial judge improperly allowed the jury to be chosen from a venire composed of less than seventy-five prospective jurors.

When forty prospective jurors arrived, the court stated that it wanted more than forty in the courtroom. Defense counsel then objected “to the number.” The court requested ten additional prospective jurors. When they arrived (bringing the total up to fifty), voir dire began.

The correct procedural device for alleging that the general or petit jury ve-nire was improperly drawn, selected or constituted is a motion to quash. LSA-C.Cr.P. Art. 532(9). The failure of a defendant to timely file one constitutes a waiver of the objections. LSA-C.Cr.P. Art. 535 D; State v. Durr, La., 343 So.2d 1004 (1977), and the cases cited therein. Here, counsel neglected to file a motion to quash. Thus, he has waived his objection complaining of the number of prospective jurors.

Moreover, we find yet another procedural defect preventing our treatment of the issue. When the judge ordered the court officer to call another ten prospective jurors, the defendant did not object to the presence of only fifty jurors. Rather, he acquiesced in the ruling. LSA-C.Cr.P. Art. 841.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

Richards, the victim, testified that he feared that the defendant would take his life.

When the defendant’s sister testified, defense counsel asked her if the victim “appeared to be afraid.” She answered no. The prosecutor objected, arguing that the question called for a conclusion. The court sustained the objection and the defendant now challenges the ruling.

The court’s subsequent ruling did not prejudice the defendant for his witness answered the question, and the court did not admonish the jury to disregard the answer. LSA-C.Cr.P. Art. 921.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

In rebuttal argument, the prosecutor commented upon the failure of defendant’s sister to turn her brother in to the police. The defense objected, contending that this was an inflammatory argument since his sister was under no legal obligation to do so.

Before a verdict is set aside on the ground of improper argument, this Court must be thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Western, La., 355 So.2d 1314 (1978); State v. Davis, La., 353 So.2d 275 (1977): State v. Lee, La., 340 So.2d 180 (1976). The defendant has failed to so convince us. The statement did not totally impeach the witness’s credibility, as the defendant contends. The issue was peripheral and irrelevant to the defendant’s guilt or innocence.

This assignment of error is without merit.

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

DIXON, J., concurs.

DENNIS, J., concurs in the decree.


author: DENNIS, Justice. TATE, Justice

text:
    AMFAC DRUG SUPPLY CO. v. William J. DRAGO, d/b/a Nottingham Pharmacy, Inc.
    No. 61648.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.
    Patrick F. McGrew, Baton Rouge, for defendant-applicant.
    Robert F. Fadaol, Gretna, for plaintiff-respondent.
   ON REHEARING

DENNIS, Justice.

A rehearing was granted in this proceeding to reconsider whether plaintiff’s appeal in the Court of Appeal should have been reinstated by this Court.

On August 5,1977 plaintiff moved for an appeal from an adverse judgment of the trial court which was made returnable on October 4, 1977. On September 26, 1977 a deputy clerk of court telephoned the office of appellant’s attorney and informed his secretary of the amount of costs due for the preparation of the record on appeal. On the return date the record was prepared for lodging in the court of appeal, but the required costs and fees had not been paid by the plaintiff. The clerk for the district court filed a motion for extension of the return date which was denied by the district court. On October 5, 1977 the defendant filed a motion to dismiss the appeal in the court of appeal on the ground that the record had not been lodged timely due to the plaintiff’s failure to pay the required costs and fees. Plaintiff opposed the motion to dismiss on the ground that the failure to pay the fees and costs was not an irregularity imputable to him because the clerk of court failed to give him written notice of the costs due. The court of appeal granted defendant’s motion to dismiss the appeal.

On initial consideration, we granted plaintiff’s petition for writ of certiorari and reinstated the appeal. For the reasons hereinafter assigned, we have determined that we erred in our original decision. Accordingly, our order reinstating the appeal is vacated and the judgment of the court of appeal dismissing the appeal is affirmed.

The issue presented for our decision is whether an appellant’s failure to timely pay costs due is an error imputable to appellant justifying dismissal of his appeal if the record was not timely lodged after the clerk of court (1) unsuccessfully moved the trial court for an extension of the return date, and (2) failed to notify the appellant in writing of the costs due before the return date.

In furtherance of the policy favoring appeals Louisiana Code of Civil Procedure Article 2161 provides that an appeal shall not be dismissed because of irregularity, error or defect “unless it is imputable to the appellant.” In Louisiana Power & Light Company v. Lasseigne this Court held that it is the appellant’s responsibility to keep informed of the return date and of costs due and that his failure to pay appellate fees and costs timely “is an error imputable to the appellant.” Recently, we qualified this rule in Davidge v. Magliola by holding that the clerk of court must endeavor to preserve the appeal by seeking extensions of the return date and that the clerk’s failure in this regard is not imputable to the appellant but, instead, supersedes the appellant’s untimely payment of costs as the cause for a dismissal of the appeal.

In the instant case the appellant failed to pay the fees and appellate costs timely. It is undisputed that the clerk of court fulfilled his duty to move for an extension of the return date in the district court. Appellant contends, however that the clerk of court did not fulfill a further obligation to notify appellant in writing that the costs were payable, citing several court of appeal decisions. But we find that these decisions were at least impliedly overruled by Louisiana Power & Light Company v. Lasseigne wherein this Court stated:

“It is incumbent upon the appellant to keep informed of the return date and extended return dates and of the amount he must pay as costs of appeal. Timely payment or tender of payment must be made in accordance with law under penalty of the appellant’s losing his appeal.” 255 La. 596, 232 So.2d 284.

Accordingly, at the time of the appeal and return date in the instant case, the clerk of court was not required to send appellant written notice of the amount of costs due. The appellant therefore lost its appeal because its failure to pay the costs timely was an error imputable solely to the appellant.

Since the court of appeal’s decision was correct, its judgment dismissing the appeal is affirmed. Costs in this Court are assessed to appellant.

MARCUS, J., dissents.

TATE, J., dissents and assigns reasons.

TATE, Justice

(dissenting).

I respectfully dissent.

In Davidge v. Magliola, 346 So.2d 177 (La.1977), we sustained an appeal which had been dismissed because of the appellant’s failure timely to pay court costs. Therein, we overruled Louisiana Power & Light Co. v. Lasseigne, 255 La. 579, 232 So.2d 278 (La.1970), insofar as that decision placed no duty on the clerk of court to attempt to secure an extension of the return date when there was no timely payment of the court costs.

The present decision is not literally inconsistent with Davidge, in that herein the clerk of court applied for but was denied an extended return date. Nevertheless, it is inconsistent with Davidge in that it places the burden upon the attorney to ascertain the amount of court costs due, rather than upon the clerk to let the attorney know when such court costs are determined, a calculation solely within the power of the clerk.

In my opinion, for the same reasons favoring appeal as there expressed by Da-vidge, we should likewise overrule Lass-eigne and revert to the earlier jurisprudence, by which an attorney’s duty to pay the court costs did not arise until he was informed of the amount of court costs due by the clerk. In modern day law practice, once the attorney has perfected his appeal by an order and bond (when required), he should be entitled to rely upon the ministerial function of the clerk of court to inform him as to what amount of court costs are due and when further action on his part is required.

This, indeed, is the tenor of our Code of Civil Procedure articles, which place upon the clerk of the trial court the primary duty of preparing the record and lodging it with the appellate court. La.C.Civ.P. art. 2127. It is true that, before the 1977 amendment, the code article continued this duty of the clerk upon the appellant’s timely payment of the costs of the appeal; but, as the pre-Lasseigne jurisprudence correctly held in my opinion, the appellant’s duty to make such timely payment did not arise under the then-statutory scheme until the clerk notified him of the amount due. It is unrealistic to require a lawyer’s office to call from week to week until finally the amount of costs due are determined by the clerk; and, although East Baton Rouge parish (where this appeal arose) may be current in this regard, in many districts the delays in the transfers and in ascertaining the costs extended for months, even years.

For these reasons I respectfully dissent.

      . La.C.C.P. art. 2161 provides:
      “An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is-lodged in the appellate court, whichever is later.”

      . 255 La. 579, 232 So.2d 278 (1970).

      . Id. 232 So.2d 283.

      . 346 So.2d 177 (La.1977).

      . Louisiana Power & Light Company v. Lasseigne, supra, and Davidge v. Magliola, supra, were decided before the amendment and reenactment of Article 2161, as written at the time of the instant case. However, the article was not changed in any respect pertinent to the instant case.

      . Solomon v. Hickman, 213 So.2d 96 (La.App.1st Cir. 1968); Atlantic Gulf Supply Corp. v. McDonald, 171 So.2d 481 (La.App.4th Cir. 1965); see also, Thompson v. Warmack, 229 So.2d 352 (La.App.3d Cir. 1969).

      . Louisiana Code of Civil Procedure Article 2126, as amended by Act 198, § 2 of 1977, expressly requires the clerk of court to send such notices by certified mail:
      “The clerk of the trial court, immediately after the order of appeal has been granted and the security, if required, has been furnished, shall estimate the cost of the preparation of the record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court. The clerk shall sent a notice by certified mail of the estimated costs to the appellant.
      “Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk. The trial court may grant one extension of the period for paying the amount of the estimated costs, for not more than an additional twenty days, upon written motion showing good cause for the extension.
      “The appellant may question the excessiveness of the estimated costs by filing a written application for reduction in the trial court within the first twenty-day time limit, and the trial court may order reduction of the estimate upon proper showing. If an application for reduction has been timely filed, the appellant shall have twenty days to pay the costs, beginning from the date of the action by the trial court on application for reduction.
      “After the preparation of the record on appeal has been completed, the clerk of the trial court shall, as the situation may require, either refund to the appellant the difference between the estimated costs and the actual costs, if the estimated costs exceed the actual costs, or send a notice by certified mail to the appellant of the amount of additional costs due, if the actual costs exceed the estimated costs. If the payment of additional costs is required, the appellant shall pay the amount of additional costs within twenty days of the mailing of the notice.
      “If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, upon motion by the clerk or by any party, and after hearing, may:
      “(1) Extend the time within which the costs may be paid, not to exceed thirty days with or without penalty upon appellant or his attorney; or
      “(2) Impose a fine, not to exceed one hundred dollars, upon the appellant, or his attorney, or both; or
      “(3) Dismiss the appeal.
      “If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.”

      . The 1976 and 1977 amendments of La.C.Civ.P. art. 2126 requiring only the payment of estimated costs (after notice by the clerk) within a short time after the appeal is taken has now eliminated this problem as to future appeals.


author: PER CURIAM.

text:
    STATE of Louisiana v. Willie B. RAYBORN.
    No. 61335.
    Supreme Court of Louisiana.
    May 22, 1978.
    John M. Bemiss, Jr., Asst. Public Defender, 18th Judicial District, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel M. Ca-shio, Dist. Atty., Charles H. Dameron, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana, Appellee-Respondent, v. Kerry Andras LABAUVE, Appellant-Relator.
    No. 62111.
    Supreme Court of Louisiana.
    May 24, 1978.

      Joseph Neves Marcal, III, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William Yates, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

The defendant was convicted of violating La.R.S. 56:409 and sentenced to pay a fine of $400. The statute proscribes the use of gill nets in portions of Lafourche and Terre-bonne parishes.

The sole issue before us, as raised by the defendant’s appeal, concerns the constitutionality of the cited statute. The trial court had denied a motion to quash the information because of the invalidity of the statute upon which based.

By such motion, the defendant contends that the cited statute is a local law enacted in violation of La.Const. of 1974, Art. 3, Section 12, which provides: “ * * * the legislature shall not pass a local or special law: . (10) Defining any crime.”

(1)

The Louisiana legislature possesses the authority to enact any law which is not prohibited by the federal or Louisiana constitutions. See Davenport v. Hardy, 349 So.2d 858 (La.1977) and cases cited therein. The basis of defendant’s argument is that La.R.S. 56:409 violates Article 3, Section 12 of the Louisiana Constitution of 1974, which provides, in pertinent part, that “[e]xcept as otherwise provided in this constitution, the legislature shall not pass a local or special law . . . (10) Defining any crime.”

The jurisprudence interpreting Article 3, Section 12 of the 1974 Constitution (as well as Article 4, Section 4 of the Louisiana Constitution of 1921, the corresponding provision in the old constitution), indicates that a statute is local or special if its restrictions can operate upon or affect only a portion of the citizens or a fraction of the property embraced within the classification created, while a general law is one which operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides or operates equally upon all of a designated class, founded upon a reasonable and proper classification. Davenport v. Hardy, 349 So.2d 858 (La.1977); State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976); Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975); Kotch v. Board of River Port Pilot Commissioners, 209 La. 737, 25 So.2d 527 (1946), affirmed 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1974); State v. Dalon, 35 La.App. 1141 (1883).

Under these cases, however, a law, general in its terms, is not considered to be local or special, even though its enforcement may be limited to a particular locality, simply because the conditions under which it operates do not prevail in every locality. Davenport v. Hardy, cited above; State ex rel. Miller v. Henderson, cited above; Kotch v. Board of River Port Pilot Commissioners, cited above; State v. Donato, 127 La. 393, 53 So. 662 (1910); State v. Dalon, cited above. Rather the factor which makes a statute special or local is that it operates in one locality without the possibility of extending its coverage to other areas should the requisite criteria of its statutory classification exist there or that it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. State ex rel. Miller v. Henderson, cited above. See also Comment, General and Special Laws in Louisiana, 16 La.L.Rev. 768 (1956); 2 Sutherland, Statutes and Statutory Construction § 40.02 (4th ed. 1973).

(2)

The statute prohibits the use of gill nets in portions of Terrebonne and Lafourche parishes south of the Intracoastal Canal. The legislature is, of course, empowered to regulate or even prohibit the use of gill nets in commercial fishing. It can provide criminal penalties for violation, however, only by a general statute applicable to all similarly-classified parishes or localities. On its face, the present statute is a local statute which (for no shown reason) applies only to portions of Lafourche and Terrebonne parishes.

In State v. Clement, 188 La. 923, 178 So. 493 (1938), the court held that a statute which prohibited trapping in marsh lands within a certain proximity of the Gulf of Mexico was a local or special law and invalid for want of publication as required by the state constitution. The classification created was marsh lands within 150 miles of the Gulf.

In declaring the act to be special because of the unreasonable classification, the court took notice of the fact that there were numerous swamp areas without this arbitrary perimeter and stated that there was no rational justification for the latter’s exclusion. If the statute had been applicable to all marsh lands in the state, it would have been upheld as a general law.

Whatever the prior jurisprudence, the Louisiana Constitution of 1974 in unmistakable terms specifically prohibits this type of legislation. Article 3, Section 12, provides: “ * * * the legislature shall not pass a local or special law: . . . (10) Defining any crime.” In the constitutional debates concerning adoption of this provision, its proponents in fact specifically agreed that the gill net law then in force — a local law affecting only parts of Lafourche Parish, the predecessor of the law here at issue— would be invalidated, should this provision be adopted. See Volume 36, Verbatim Transcript of Proceedings of Constitutional Convention of 1973 (112th day), pp. 25-29 (1974).

When the operation of a law is limited to certain parishes, it is suspect as a local or special law. If its operation is so limited solely through the effect of a reasonable general classification (such as population size or physical characteristics), the law should not be considered within the prohibition of Art. 3, Section 12(A). See Johnson, Legislative Process, 36 La.L.Rev. 549 (1976); cf. Nomey v. State, 315 So.2d 709 (La.1975). However, if its operation is limited solely by its specific designation of certain parishes, it must be considered a local law violative of our constitution.

(3)

The state argues, however, that a statute is presumed to be constitutional and that the person attacking it has the burden of proving the contrary.

Nevertheless, La.R.S. 56:409 appears on its face to be a special law, applying only to portions of Lafourche and Terrebonne Parishes. The statute itself states no reasonable basis for the classification such as distinct geographic conditions which do not exist in any other part of the state. Because the law classifies by naming parishes rather than by describing conditions, it does not fall within the rule that a statute is not local, even though truly applicable to only one locality, if it is general in its terms and its coverage can extend to other areas should the requisite criteria exist there as well. See Sutherland, supra, at § 40.06.

Since by this analysis the statute on its face is a local criminal law, the defendant in this case carried his burden of proving its unconstitutionality. See State v. Skinner, 358 So.2d 280 (decided April 10, 1977); State v. Everfield, 342 So.2d 648 (La.1977); State v. Devall, 302 So.2d 909 (La.1974). Since the law by its terms does not permit future entrance to the class when its qualification standards have been met, the reasonableness of the present specific and narrow classification is not truly at issue. See La.Const., Art. 6, Section 3 (1974) which provides that “the legislature may classify parishes or municipalities according to population or on any other reasonable basis related to the purpose of the classification.” See also Vol. 36, Verbatim Transcript of Proceeding of Constitutional Convention of 1973, 112th day, at 25-35 (1974).

Conclusion

This statute is plainly a local law defining a state crime applicable only to a given locality, in violation of the express provision and the intended prohibition of Article 3, Section 12. See also: 2 Sutherland, Statutes and Statutory Construction, Sections 40.01, 40.04, 40.06, 40.08, 40.23 (4th Ed., Sands, ed., 1973).

Accordingly, we declare La.R.S. 56:409 unconstitutional on its face, and we reverse the trial court judgment denying the motion to quash the information as founded on an invalid statute, and we reverse and set aside the conviction and sentence, and dismiss the prosecution.

STATUTE HELD TO BE UNCONSTITUTIONAL; CONVICTION AND SENTENCE REVERSED; PROSECUTION DISMISSED.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.

APPENDIX A

La.R.S. 56:409 provides:

Use of gill nets, trammel nets and seines in portions of Terrebonne and Lafourche Parishes
A.The use of gill nets is hereby prohibited in the area bounded on the north by the southern line of the Intracoastal Waterway, on the south 750 feet seaward from the inside and outside shrimp line described in R.S. 56:495, on the east by the eastern boundary line of the parish of Lafourche and on the west by the western boundary line of the parish of Terre-bonne. Any such nets found in use in the area described above shall be confiscated and destroyed.
B. Except for the period from July 16 through April 14 following, the use of trammel nets and seines for saltwater fishing is hereby prohibited in the area bounded on the north by the southern line of the Intracoastal Waterway, on the south 750 feet seaward from the inside and outside shrimp line described in R.S. 56:495, on the east by the eastern boundary line of the parish of Lafourche and on the west by the western boundary line of the parish of Terrebonne. It is specifically provided in this section that menhaden vessels licensed by the State of Louisiana shall be allowed to purse seine for menhaden seaward but not nearer than 750 feet seaward from the inside and outside shrimp line described in R.S. 56:495.
C. Any person found guilty of violating any provision hereof shall be subject to a fine of not less than two hundred dollars or more than five hundred dollars or imprisonment of not less than thirty days or more than six months. As an additional penalty, the violator’s net or nets and catch shall be confiscated.

      . The statute is set forth in full as Appendix “A” to this opinion.

      . The sentence for the misdemeanor falls below the minimum of those directly appealable to this court. La.Const. of 1974, Art. 5, Section 5(D). However, we treat this as an application for supervisory review, La.Supreme Court Rule 1, Section 11, to which the respondent is entitled in lieu of direct appeal. La.Const. of 1974, Art. 5, Section 5(D); La.C.Cr.P. art. 912.1 (1974).

      . The Official Map of Louisiana prepared by the Louisiana Department of Public Words (1971), for instance, shows similar topography and waterway configuration of adjacent portions of St. Mary, Jefferson, St. Bernard, and Plaquemines parishes south of the Intracoastal Canal. A Louisiana court may take judicial cognizance of geography and topography of the state. State v. Clement, 188 La. 923, 178 So. 493, 495-96 (1938).


text:
    STATE of Louisiana v. Robert Earl HUSBAND and Eldridge Elvin Payton.
    No. 60917.
    Supreme Court of Louisiana.
    May 31, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Floyd DOMINO.
    No. 60957-A.
    Supreme Court of Louisiana.
    May 31, 1978.
    Bernard E. Fulghum, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Howat A. Peters, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. James WILLIAMS.
    No. 61052.
    Supreme Court of Louisiana.
    May 31, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John L. Lenfant, IV, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Edward L. COLLINS.
    No. 61070.
    Supreme Court of Louisiana.
    May 31, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Harry SULLIVAN.
    No. 61097.
    Supreme Court of Louisiana.
    May 31, 1978.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Harry Sullivan was charged with distribution of heroin in violation of La.R.S. 40:966, was tried by jury, and found guilty as charged. Subsequently he was sentenced to serve the rest of his natural life at hard labor without benefit of probation, parole or suspension of sentence. He now appeals his conviction and sentence to this Court.

While we find no grounds for reversal of defendant’s conviction, we note ex proprio motu that the sentence imposed was illegal. La.C.Cr.P. art. 920(2). At the time of the commission of this offense on April 3, 1974, the appropriate penalty for distribution of heroin was life imprisonment at hard labor without any qualification as to the defendant’s eligibility for parole, probation or suspension of sentence. La.R.S. 40:966, added by Acts 1972, No. 634, § 1 and amended by Acts 1973, No. 207, § 3. Accordingly, the case must be remanded for resentencing. See State v. Lindsey, 351 So.2d 1178 (La.1977).

Defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to sentence the defendant in accordance with law.


text:
    STATE of Louisiana v. Roosevelt McGEE.
    No. 61211.
    Supreme Court of Louisiana.
    May 31, 1978.
    Dean A. Andrews, Jr., Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Anthony J. WILLIAMS.
    No. 61220.
    Supreme Court of Louisiana.
    May 31, 1978.
    Patrick D. McArdle, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Tyrone T. MITCHELL.
    No. 61307.
    Supreme Court of Louisiana.
    May 31, 1978.
    Brian M. Begue, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Willy COLEMAN.
    No. 61316.
    Supreme Court of Louisiana.
    May 31, 1978.
    Don M. Richard, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Walter DAVIS and John Carmouche.
    No. 61317.
    Supreme Court of Louisiana.
    May 31, 1978.
    Arthur L. Harris, Sr., Harris, Stampley, McKee, Bernard & Broussard, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Nelson AVERY.
    No. 61324.
    Supreme Court of Louisiana.
    May 31, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Calvin MOSLEY.
    No. 61336.
    Supreme Court of Louisiana.
    May 31, 1978.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Rickey L. ROBINSON.
    No. 61337.
    Supreme Court of Louisiana.
    May 31, 1978.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DIXON and DENNIS, JJ., dissent as to assignments of error No. 3.


text:
    STATE of Louisiana v. James M. COBB.
    No. 61340.
    Supreme Court of Louisiana.
    May 31, 1978.
    D. Milton Moore, III, Banks & Moore, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Nancy F. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Willie J. WOODS.
    No. 61346.
    Supreme Court of Louisiana.
    May 31, 1978.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lawyel C. KHATON.
    No. 61347.
    Supreme Court of Louisiana.
    May 31, 1978.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Gary Paul VOCLAIN.
    No. 61374.
    Supreme Court of Louisiana.
    May 31, 1978.
    Barron M. Whipple, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court with instructions to sentence the defendant to imprisonment at hard labor for a period of twenty (20) years. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Sledge, 340 So.2d 205 (La.1976); State v. Lee, 340 So.2d 180 (La.1976). See also Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed. 982 (1977).


text:
    STATE of Louisiana v. Robert E. CRAFT.
    No. 61401.
    Supreme Court of Louisiana.
    May 31, 1978.
    Marcus V. Hallum, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John L. Lenfant, IV, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Harold David McGARITY a/k/a David McKay.
    No. 61410.
    Supreme Court of Louisiana.
    May 31, 1978.
    Richard N. Ware, Kelly, Ware & Salim, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric R. Harrington, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Albert DOUGLAS, Jr.
    No. 61447.
    Supreme Court of Louisiana.
    May 31, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Board, 24th Judicial District, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research and Appeals, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Victor THOMPSON.
    No. 61458.
    Supreme Court of Louisiana.
    May 31, 1978.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles OSBERRY.
    No. 61459.
    Supreme Court of Louisiana.
    May 31, 1978.
    Brian M. Begue, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Gregory HOLMES.
    No. 61460.
    Supreme Court of Louisiana.
    May 31, 1978.
    William J. O’Hara, III, Supervising Atty., New Orleans, Kim Allison Gandy, Student Practitioner, Loyola Law Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lorenzo JORDAN.
    No. 61491.
    Supreme Court of Louisiana.
    May 31, 1978.
    Frank G. DeSalvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Gary Don FRANKLIN.
    No. 61502.
    Supreme Court of Louisiana.
    May 31, 1978.
    W. Lee Overton, Overton & Overton, Ltd., Clinton, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, ,Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles A. STEWART.
    No. 61504.
    Supreme Court of Louisiana.
    May 31, 1978.
    Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John W. OATIS.
    No. 61515.
    Supreme Court of Louisiana.
    May 31, 1978.
    William J. O’Hara, III, Supervising Atty., New Orleans, Mary Coffman, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    Randall Rex BARNES, Cindy Breaux, Brenda Howard, Joe B. Fincher v. SUN OIL COMPANY et al.
    No. 61773.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Randall Rex Barnes and Joe B. Fincher, Cindy Breaux and Brenda Howard, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Mary. 358 So.2d 655.

Writ granted.

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


text:
    Randall Rex BARNES, Cindy Breaux, Brenda Howard, Joe B. Fincher v. SUN OIL COMPANY et al.
    No. 61805.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Cindy Breaux, Brenda Howard, Randall Rex Barnes and Joe B. Fincher, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 358 So.2d 655.

Writ granted.

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


text:
    Allen JOHNSON v. ALLRIGHT NEW ORLEANS, INC., (Two Cases).
    No. 62015.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Allen Johnson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1210.

Writ denied.


text:
    Candace J. DAVEY v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY.
    No. 61994.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Louisiana Health Service and Indemnity Company, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1170.

Writ denied.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., would grant the writ.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Roger MILLER.
    No. 62229.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: State of Louisiana applying for writ of review. Parish of West Baton Rouge.

Writ denied. Insufficient showing to warrant the interruption of the orderly trial proceedings.

SUMMERS, J.,

is of the opinion the writ should be granted. No showing has been made by the defense that the tapes contained contradictory statements. Such a foundation is essential to production of a witness’ statement in the State’s possession. State v. Weston, 232 La. 766, 95 So.2d 305.


text:
    STATE of Louisiana v. Clyde ROBINSON.
    No. 62328.
    Supreme Court of Louisiana.
    May 29, 1978.
   In re: Clyde Robinson applying for writ of review, prohibition, mandamus and stay order. East Carroll Parish.

Writ granted. Applicant admitted to bail. The trial judge is ordered to fix the amount according to law.


text:
    STATE of Louisiana v. Leon RICHARD.
    No. 62242.
    Supreme Court of Louisiana.
    June 1, 1978.
   In re: Leon Richard applying for supervisory writs. East Baton Rouge Parish.

Prior action set aside. The application will be considered on its merit.


text:
    STATE of Louisiana v. Hal R. COLLUMS.
    No. 62330.
    Supreme Court of Louisiana.
    June 1, 1978.
   In re: Hal R. Collums applying for supervisory writs. Parish of Orleans.

Granted; the ruling of the trial judge that the request for subpoena is “burdensome” is set aside, and an evidentiary hearing is ordered to determine whether production of the requested information would in fact be “burdensome”.


text:
    STATE of Louisiana ex rel. Don B. PARKER v. Hon. Rudolph F. BECKER, III, Judge, Section “E”, Orleans Criminal Dist. Court.
    No. 62202.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Don B. Parker, applying for writ of mandamus. Orleans Parish.

Granted. There is no record of filing in the district court. The matter is transferred to the district court and ordered filed on behalf of petitioner. The trial court is ordered to appoint a lawyer to represent the applicant and proceed to act upon the application.


text:
    ARROW CONSTRUCTION CO., INC. v. NEWSOM’S DEMOLISHING CO., INC.
    No. 62232.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Newsom’s Demolishing Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 95.

Denied.


text:
    Yvonne M. HILL, etc. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 6227.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: John J. Capretto, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 61.

Denied.


text:
    Willie P. CRANE v. PATTERSON AND YEARY STEEL COMPANY, INC., et al.
    No. 62223.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Patterson and Yeary Steel Co., Inc., et al applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 49.

Denied.


text:
    Douglas FOWLER et al. v. WESTERN UNION TELEGRAPH CO.
    No. 62220.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Douglas Fowler, et al applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 357 So.2d 1305.

Denied.


text:
    Edgar NED, Sr. v. The HERTZ CORPORATION et al.
    No. 62215.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: The Hertz Corporation applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 356 So.2d 1074.

Denied.


text:
    John T. COOPER v. Ann Trenchard COOPER.
    No. 62211.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Ann Trenchard Cooper, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles PRICE, Sr. v. STATE of Louisiana.
    No. 62207.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Charles Price, Sr., applying for remedial writs of certiorari. Parish of Ter-rebonne.

Denied.


text:
    Mrs. Judith Homes, wife of Norman L. JOHNSON v. Norman L. JOHNSON.
    No. 62195.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Judith Homes applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 69.

Writ denied.


text:
    Mary Anne Bradford PENNEY v. Wayne Frank PENNEY.
    No. 62194.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Mary Anne Bradford Penney applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 357 So.2d 53.

Writ denied.


text:
    Succession of Willard H. KILPATRICK, the Board of Trustees for State Colleges and Universities of the State of La. and the Board of Supervisors of La. State University, the First National Bank of Shreveport. v. Arnold R. KILPATRICK et al.
    No. 62189.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Arnold R. Kilpatrick and Harper A. Terrill, executors, and Katherine Terrill Kilpatrick, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 356 So.2d 1083.

Writ denied.


text:
    W. A. McMICHAEL CONSTRUCTION CO. v. D & W PROPERTIES, INC., et al.
    No. 62187.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: D&W Properties, Inc., Southside Centers Association, Park South Properties and F. H. Delaney applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 356 So.2d 1115.

Denied.


text:
    STATE of Louisiana ex rel. Lionel FIELDS v. STATE of Louisiana.
    No. 61793.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Lionel Fields applying for writs of habeas corpus, certiorari, mandamus and prohibition. Parish of Orleans.

Denied as moot. An out-of-time appeal was granted in this case Jan. 6, 1977, but was not entered in trial court minutes. The trial court shall forward a copy of its Jan. 6, 1977 ruling and appoint a lawyer, if need be, to represent applicant on appeal.


text:
    STATE of Louisiana v. Dee Wayne PERRY.
    No. 62294.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Dee Wayne Perry, applying for writ of certiorari. Parish of East Baton Rouge. 351 So.2d 1201.

Writ granted. The State is ordered to produce the witness at the June 8th hearing.


text:
    STATE of Louisiana v. Joseph SIEGEL.
    No. 62248.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: State of Louisiana, applying for supervisory writs. Parish of East Baton Rouge. 354 So.2d 525.

Writ granted. Case remanded for new habitual offender hearing; evidence of pri- or convictions properly authenticated should be admitted in evidence.


text:
    STATE of Louisiana ex rel. GUSTE, Attorney General and Representatives R. Harmon Drew and B. F. O’Neal v. The CITY OF NEW ORLEANS, Moon Landrieu, Terrence Duvernay and Henry Simmons.
    No. 62246.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: State of Louisiana ex rel. Guste, Attorney General and Representatives R. Harmon Drew and B. F. O’Neal applying for supervisory writs. Parish of Orleans. 353 So.2d 1117.

Writ granted.

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 Melvin Duran, Judge of the Civil District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 16th day of June, 1978, 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 a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Ricky J. TERREBONNE.
    No. 62270.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Ricky J. Terrebonne applying for writ of habeas corpus. Jefferson Parish. 354 So.2d 1356.

Granted.

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 Fred S. Bowes, Judge of the 24th Judicial District, Court of the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 16th day of June, 1978, 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 a date to be fixed by this court, 1978, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Shireley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana v. LESLIE ARDOIN, INC.
    No. 62218.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Leslie Ardoin, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 357 So.2d 1317.

Denied.

SANDERS, C. J. and SUMMERS, J., would grant the writ.


text:
    SOUTHERN TOURS, INC. v. NEW ORLEANS AVIATION BOARD, Paul J. Stoulig, Jerome S. Glazer, Nolan A. Marshall, Robert L’Hoste, James M. Trotter, III, Henry J. Priloux, Jr., Phyllis Landrieu, Lane Meltzer, and Richard J. Kernion.
    No. 62221.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Southern Tours, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 102.

Writ denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Junius WILSON.
    No. 62222.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans.

Writ denied.

SANDERS, C. J., would grant the writ.


text:
    Merril L. HENNINGER v. UNITED STATES FIDELITY AND GUARANTY CO. and Schaff Brothers, Inc.
    No. 62226.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Merril L. Henninger, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 96.

Writ denied.

DIXON and CALOGERO, JJ., dissent.


text:
    Claude C. MELANCON, Jr., Amelie P. Melancon, widow of Claude C. Melancon, Sr., Edward Melancon, James H. Melancon, Elizabeth M. Haydel, Roy J. Melancon, Yolande M. Bolline, Lucille M. Dolbear, Corinne M. Bouquet, Mildred M. Ladner and Gerald N. Melancon v. Sidney E. WOOD, John Wood and Gerry Wood.
    No. 62228.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Claude C. Melancon, Jr., et al applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. James. 357 So.2d 75.

Denied.

CALOGERO, J., would grant the writ.


text:
    Lorraine S. Prevost, wife of/and Edmond G. PREVOST v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 62230.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: New Orleans Public Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1371.

Writ denied.

SUMMERS and MARCUS, JJ., would grant the writ.


text:
    LINSCOMBE CONSTRUCTION CO., INC. v. Henry E. NELSON, d/b/a Nelson Louisiana Developer, et al. JOE’S CONCRETE WORKS, INC. v. Henry E. NELSON et al.
    No. 62233.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Linscomb Construction Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia.

Writ denied.

SUMMERS and DENNIS, JJ., would grant the writ.


author: TATE, J.,

text:
    STATE of Louisiana v. Douglas HATFIELD.
    No. 62257.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Douglas Hatfield, applying for writ of certiorari. Parish of East Baton Rouge.

Denied.

TATE, DIXON and CALOGERO, JJ., would grant the writ.

TATE, J.,

is of the opinion that no grounds are shown to justify severance of multiple count information to permit the result here obtained under present facts, the State should have nol prossed one or more counts of the multiple-counts and filed new informations.


text:
    STATE of Louisiana v. John Tansley MILLER.
    No. 61940.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: John Tansley Miller applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu.

Writ granted. Evidentiary hearing ordered to determine whether a capital verdict is possible in this case. If it is not, relator is entitled to waive jury trial.


text:
    STATE of Louisiana v. Lance T. NOWELL.
    No. 62095.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Lance T. Nowell, applying for writs of review, certiorari and mandamus. Parish of East Baton Rouge.

Granted.

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 Douglas M. Gonzales, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 16th day of June, 1978, 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 a date to be fixed by this court, 1978, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Joseph A. CATANESE.
    No. 62184.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: State of Louisiana, through the District Attorney, John A. Richardson, applying for writ of certiorari or review. Parish of Caddo.

Granted.

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 Fred C. Sexton, Jr., Judge of the First (1st) Judicial District, Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 16th day of June, 1978, 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 a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Thaddeus M. BATISTE.
    No. 62234.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Thaddeus M. Batiste, applying for remedial writs. Parish of Plaquemine.

Granted; the trial court is ordered to hold an evidentiary hearing on # 40,230 and # 50,790.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The Honorable Judges George C. CONNOLLY, Jr., Adrian G. Duplantier, Thomas A. Early, Jr., Richard J. Garvey and Henry J. Roberts, Jr., in their official capacity as Judges for the Civil District Court for the Parish of Orleans, and the Honorable Judges Israel M. Augustine, Jr., Alvin V. Oser, Frank J. Shea, Charles R. Ward and Jerome M. Winsberg in their official capacity as Judges for the Juvenile Court for the Parish of Orleans.
    No. 62247.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: William J. Guste, Jr., Attorney General applying for supervisory writs. Orleans Parish.

Writ granted.

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 Paul P. Garofalo, Judge of the Civil District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 16th day of June, 1978, 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 a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Terry CALDWELL et al. v. ROBERTSON TANK LINES, INC., et al.
    No. 62249.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Terry Caldwell, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Carrilena WOOD.
    No. 62188.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Carrilena Wood, applying for supervisory writs and for a stay order. Parish of Lafayette.

Denied.


text:
    STATE of Louisiana v. Ruby Lee CLEMENT.
    No. 62190.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Ruby Lee Clement applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu.

Denied.


text:
    STATE of Louisiana ex rel. Feltus ANDERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62206.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Feltus Anderson, applying for writ of review. Parish of Orleans.

Denied.


text:
    Elnora Tate PERRY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 62212.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: State Farm Mutual Automobile Ins. Co. applying for supervisory or remedial writs. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Merlin A. HASSELBECK.
    No. 62235.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Merlin A. Hasselbeck, applying for writs of certiorari, review, prohibition and mandamus. Parish of East Baton Rouge.

Writ denied.


text:
    Trustees under the Will of Annie Burges POMEROY v. TOWN OF WESTLAKE et al.
    No. 62236.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Town of Westlake, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 357 So.2d 1299.

Denied.


text:
    STATE of Louisiana ex rel. Adam SMITH v. Frank V. ZACCARIA, Judge, 24th Judicial District Court, Parish of Jefferson.
    No. 62259.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Adam Smith applying for writ of mandamus. Parish of Jefferson.

Denied; the application is moot because it was denied on March 21,1978. However the trial court failed to notify the applicant, and is now ordered to notify the applicant of its ruling.


text:
    STATE of Louisiana v. Tyronne SIMPSON.
    No. 62264.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Tyronne Simpson applying for writ of mandamus. Parish of Orleans.

Writ denied. Moot. Relator has been provided the transcript relator seeks, according to the trial judge.


text:
    STATE of Louisiana ex rel. Henry Lee MARTIN v. 4th JUDICIAL DISTRICT COURT, PARISH OF MOREHOUSE.
    No. 62269.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Henry Lee Martin, applying for writ of mandamus. Parish of Morehouse.

Writ Denied; Moot. Trial court furnished item requested. See order of April 13, 1978.


text:
    Huey P. WILLIAMS v. Eugene SCROGGY, Superintendent, Caddo Correctional Institute.
    No. 62271.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Huey P. Williams, applying for writs of certiorari, mandamus and prohibition. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana ex rel. Herbert WILLIAMS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62274.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Herbert Williams, applying for remedial writs. Parish of Orleans.

Writ denied. Allegations if proved would not support the relief sought.