text:
    In re ESTATE of Harry FREEDMAN, Deceased.
    Nos. 75-1454, 75-1455.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Horton, Perse & Ginsberg, Dunn & Johnson, Miami, for appellant.
    George J. Talianoff and Paul S. Berger and Terrence Schwartz, Miami Beach, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Evelyn Freedman appeals an order denying her petition for an attorney’s fee.

In an independent action brought in the civil division of the circuit court, Evelyn Freedman was successful in impressing a constructive trust on legacies bequeathed by her deceased father to her two half-sisters. Thereafter, Ms. Freedman filed in the probate division of the circuit court a petition praying that her father’s estate pay her a reasonable attorney’s fee as a result of her successful suit. The petition was denied.

In order to be entitled to a reasonable attorney’s fee, the estate must have been benefited by the services of counsel. In Re Gleason’s Estate, 74 So.2d 360 (Fla.1954). In the case at bar the distribution was not changed, but rather a constructive trust was placed on the distributive shares of the legatees by means of a separate action in the civil division of the circuit court. We conclude that the estate was not enhanced thereby and the probate judge was eminently correct in denying Ms. Freedman an award of a reasonable attorney’s fee. See In Re Farris’ Estate, 113 So.2d 721 (Fla.3d DCA 1959).

Affirmed.


source: Caselaw Access Project

author: NATHAN, Judge.

license: Public Domain

text:
    MILLSTREAM CORPORATION, a Florida Corporation, Appellant, v. DADE COUNTY, etc., et al., Appellees.
    No. 75-1815.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Mahoney, Hadlow, Chambers & Adams and Thomas C. Cobb, Miami, and William Hyatt, Jacksonville, for appellant.
    Stuart L. Simon, County Atty. and Robert L. Krawcheck, Asst. County Atty., for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by the Millstream Corporation, plaintiff below, from an order granting the defendant County’s motion to dismiss. Millstream had sought to have certain County tax assessments declared void and to have collection of ad valorem taxes on its property enjoined pending a determination as to whether plaintiff’s property should have been classified as agricultural lands.

Dade County moved to dismiss Millstream’s complaint, citing the latter’s failure to comply with Florida Statutes § 194.-171(3) & (4) (Supp.1976), which require a taxpayer to pay those taxes which are admittedly owing as a prerequisite to suit:

“194.171 Circuit court to have original jurisdiction in tax cases
* # * * s{< *
(3) Before a taxpayer may bring an action to contest a tax assessment, he shall pay to the collector the amount of the tax which he admits in good faith to be owing. The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint.
(4) No action to contest a tax assessment may be maintained unless all taxes on the property which the taxpayer in good faith admits to be owing, including taxes assessed in years after the action is brought, are paid before they become delinquent.”

Since Millstream had not paid those taxes which it owed regardless of the resolution of the classification issue, the trial court dismissed its complaint for failure to comply with the quoted sections of Florida Statutes.

Millstream’s primary contention on appeal is that the subject sections of Florida Statutes do not impose a jurisdictional prerequisite to suit. Instead, Millstream argues that the payment of taxes which are admittedly owing is only a prerequisite to the granting of relief.

This issue is not new to Florida law. In Collins Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla.1964), the Supreme Court of Florida held that the payment of taxes admittedly owing was not a jurisdictional prerequisite to the maintenance of a suit challenging an allegedly excessive assessment. However, in Adler-Built Industries, Inc. v. Metropolitan Dade County, 231 So.2d 197 (Fla.1970), the court noted that the Legislature had amended Florida Statutes § 196.01 — the predecessor to § 194.171 — in order to overcome the holding of the Collins case:

“It is noteworthy that in . Ch. 69-140, Acts of 1969, [the Legislature] amended § 196.01 so as to require, as a jurisdictional prerequisite, the payment into court of the amount of the tax admitted to be legal and due. This must have been done in recognition of, and with an intention to change, the ruling made in the Collins Investment Co. case, . that such payment was not required to be made as a prerequisite to filing suit under § 196.01 to contest a tax assessment.” Id. at 199.

Millstream contends that the Adler-Built case is distinguishable, since it involved a grossly excessive assessment which was otherwise valid, whereas Millstream is challenging the classification of its property and thus the validity of the entire assessment. This argument cannot prevail, for the plaintiff here would have been responsible for some amount of taxes on its land regardless of the outcome of its suit challenging the County’s failure to classify its land as agricultural. Millstream’s amended complaint virtually parallels the essential facts of the Adler-Built case:

“7. . . . Plaintiff . . . does not possess any ground for objecting to any of the said assessments other than the fact that Plaintiff believes itself entitled to have each of the said parcels classified and assessed as agricultural property-
* * * * * *
11. The failure of the defendants to afford to the Plaintiff an effective opportunity to show that the aforesaid parcels have at all material times been used for bona fide agricultural purposes has resulted and will continue to result in the imposition upon the Plaintiff of the obligation to pay ad valorem taxes on the properties in question greatly in excess of the amount of taxes for which Plaintiff would be liable had such properties been classified as agricultural lands.” (Emphasis added.)

We should note that the case before us is distinguishable from several similar situations which have been considered by the First District Court of Appeal. In the first, Hilltop Ranch, Inc. v. Brown, 308 So.2d 124 (Fla. 1st DCA 1975), the First District held that an amended complaint containing an allegation of payment of the taxes admittedly owing and a receipt therefor related back to the date of the original complaint. In a subsequent case, Brooks v. Interlachen Lakes Estates, Inc., 332 So.2d 681 (Fla. 1st DCA 1976), the First District sustained a dismissal with leave to amend where the plaintiff had tendered the amount which it admittedly owed to the tax collector on the day of the hearing on the property appraiser’s motion to dismiss.

Although the court in Hilltop Ranch raised certain constitutional questions concerning the validity of § 194.171(3), it never actually reached the question of payment as a jurisdictional prerequisite to suit; nor was that particular question resolved in the Brooks case. In both instances, payment had either been made or tendered prior to any ruling on the motions to dismiss.

Such is not the case in the action now before us. There is no allegation that tender of payment was made prior to the ruling on the motion to dismiss, or at any time before the taxes became delinquent. For these reasons, we find that the decisions in the Hilltop Ranch and Brooks cases are not controlling in this instance.

Millstream also asserts that the trial court’s dismissal denied it procedural due process, relying primarily on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). However, appellant’s position in this regard is not well founded. Boddie and several subsequent cases decided by the United States Supreme Court concerned the payment of certain court costs by parties who alleged an inability to pay the required fees and were thus denied access to the courts. Millstream alleges no such inability to pay and, in fact, is only required by statute to pay what it in good faith admitted to be owing. The Boddie opinion carefully noted that due process does not require that parties must always be given a hearing on the merits in a civil matter. Rather, the Constitution requires that complaining parties be given a meaningful opportunity to be heard. Boddie, 401 U.S. at 378-79, 91 S.Ct. 780. The appellant in this action had such an opportunity, and it was only through its failure even to tender payment of those taxes which were admittedly owing that it was deprived of a hearing. There is little doubt that the State may validly impose such a requirement. Were it not so, it would be an easy matter to avoid paying legitimate taxes simply by challenging one facet of an otherwise valid assessment.

We therefore find that the trial court properly dismissed the complaint due to Millstream’s failure to comply with Florida Statutes § 194.171(3) & (4).

Affirmed.

      . See United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973).


author: PER CURIAM.

text:
    DOLPHIN TRUCK LEASING, INC., a Florida Corporation, and Gerald R. Perry, Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, a corporation, Appellee.
    No. 75-1818.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Jan. 26, 1977.

      Alexander S. Gordon and Richard P. Ken-ney, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Joseph W. Wom-ack, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The appellants were the plaintiffs in the trial court. This appeal is from a summary final judgment entered upon their complaint against General Motors Acceptance Corporation for damages for the wrongful repossession of property under a lien. The record, with the benefit of all inferences which reasonably can be drawn therefrom, reveals the existence of a genuine issue of material fact of whether the repossession was wrongful in that it was accomplished by intimidation by way of the defendant appearing at the plaintiff’s property with an off-duty police Officer who was there “. . . to see that the peace was not breached.”

A second issue which appears is whether, under the circumstances of this case, when the plaintiff appeared during the removal of the property and attempted to stop the removal, the continuance of the removal was a wrongful repossession. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); and Visingardi v. Tirone, 193 So.2d 601 (Fla.1966).

We, therefore, reverse this cause and remand it for further proceedings. We do not, by this remand, bar subsequent proceedings under Fla.R.Civ.P. 1.510(d), whereby the trial court may designate material facts which exist without substantial controversy.

Reversed and remanded.


text:
    Marion LOVINGS, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, a corporation, Appellee.
    No. 75-1878.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.

      Podhurst, Orseck & Parks, Beckham & McAliley, Miami, for appellant.
    Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

The appellant, plaintiff in the trial court, seeks review of an adverse directed verdict entered by the trial court at the conclusion of the appellant’s case.

On reviewing such a judgment, the court is required to observe the settled rule that we should consider the testimony in the light most favorable to the plaintiff, disregarding conflicts in the evidence and indulging in the plaintiff’s favor every reasonable inference therefrom. Guerriero v. Adams, 190 So.2d 432 (Fla. 3rd D.C.A.1966); Wilson v. Bailey-Lewis-Williams, Inc., 194 So.2d 293 (Fla. 3rd D.C.A.1967); Mathis v. Lambert, 274 So.2d 601 (Fla. 3rd D.C.A. 1973); Kilburn v. Davenport, 286 So.2d 241 (Fla. 3rd D.C.A.1973). So viewed, the record reflects the following:

Marion Lovings, 63 years of age at the time of the incident, was employed as a dining car waiter by the Seaboard Coastline Railroad, an interstate carrier. On February 3,1970, he was acting as the No. 3 man in the dining car. As such, he was engaged in washing drinking glasses utilized in the dining car. The train had gone to New York and was returning to Miami, when the incident occurred. It had reached Palm Beach shortly before 10:00 A.M., stopped, and then was proceeding southward.

Also employed by the Seaboard Coastline Railroad in the dining car was a waiter by the name of John Johnson, who was serving as the No. 5 man. His general responsibilities included sweeping the floor and helping with the silver and silver service. The sinks were for all to use, and all shared in overall responsibilities for everything. For example, each waiter had some responsibility for his own silver, his own glasses and for all that occurred, with the exception of getting the food out of the kitchen although each waiter was given specific responsibilities.

As the train left Palm Beach, Lovings was performing his services. He was preparing to wash the glasses by using the two sinks in the pantry area in the dining car; one sink would be used for washing the glasses and another for rinsing them. As he was cleaning the sink, Mr. Johnson entered the pantry car with his own tray and began running the water in the left sink where the plaintiff, Lovings, was working. Mr. Lovings inquired as to why Johnson was doing this, because it was Lovings’ job to wash the glasses and he wanted to do so. Johnson stated that he was going to do his own glasses, and commenced to run the water in the left sink right where the plaintiff was working. The plaintiff, urging that it was his job to do the glasses, then leaned over to adjust the stopper in the sink by either removing it or placing it in its proper place whereupon, as they discussed who was going to wash the glasses, Johnson assaulted the plaintiff.

The appellant alleges herein that under these facts an assault and battery, committed by a co-employee on another employee in a dispute over work procedure to be utilized, is in furtherance of the employer’s business and constitutes actionable negligence under the Federal Employers’ Liability Act determined by a jury. In support thereof, the appellant relies upon Slaughter v. Atlantic Coast Line Railroad Company, 112 U.S.App.D.C. 327, 302 F.2d 912 (1962); Baker v. Baltimore & Ohio Railroad Company, 502 F.2d 638 (6th Cir. 1974); Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082 (1929); Baker v. Chicago B. & Q. R. Co., 327 Mo. 986, 39 S.W.2d 535 (1931); Gibson v. Kennedy and Pennsylvania Railroad Company, 23 N.J. 150, 128 A.2d 480 (1957); Jester v. Southern Ry. Co. 204 S.C 395, 29 S.E.2d 768 (1944); Anno. 8 ALR 3rd 442, 444, § 2 [and cases cited].

The appellee, on the other hand, contends that in order for the employer to be liable under the Federal Employers’ Liability Act there must be a showing that an assault and battery of a fellow employee was in furtherance of the employer’s business, which was not done in the case sub judice. See: Ochsrider v. Reading Co., 172 F.Supp. 830 (E.D.Pa.1959); Euresti v. Washington Terminal Company, 108 U.S.App.D.C. 81, 280 F.2d 629 (1960); Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922); Kutz v. Terminal Railroad Association of St. Louis, 367 S.W.2d 55 (Mo.App.1963); Roberts v. Southern Ry. Co., 143 N.C. 176, 55 S.E. 509 (1906); Young v. New York Cent. R. Co., 88 Ohio App. 352, 88 N.E.2d 220 (1949).

Both sides seem to concur, and we agree, that Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) is a leading authority in determining the cause before us. Based upon the holding of Rogers v. Missouri Pacific Railroad Co., supra, and the facts of the case sub judice, we find the plaintiff had introduced evidence upon which a jury could find in his favor and, as such, it was error for the trial court to direct a verdict for the defendant.

Therefore, the final judgment appealed herein is hereby reversed, and the cause is remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded, with directions.


text:
    7200 CORPORATION, a Florida Corporation d/b/a Medley Mobile Home Park, Appellant, v. TOWN OF MEDLEY, a Municipal Corporation, et al., Appellees.
    No. 75-1950.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Horton, Perse & Ginsberg, Miami, for appellant.
    Stephen Lubow, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Appellant was the plaintiff below and appellees were the defendants.

Appellant, the owner of a mobile home park located in the Town of Medley, filed a complaint seeking a declaratory judgment, injunction and other relief. The complaint alleged, among other things, that appellee-Town of Medley had passed two ordinances on January 7, 1974, and April 7, 1975, respectively. The first ordinance declared an emergency housing shortage and created a rent control commission to administer rent controls in the town. The second ordinance reenacted the first and extended the control period.

The complaint further alleged that appellant, which rented space in its mobile home park to the public, was in doubt as to its rights under the aforementioned ordinances and was therefore seeking declaratory relief. In addition, appellant believed the ordinances to be both invalidly enacted and unconstitutional in their application.

- The cause was set for non-jury trial at which time appellant, through its officers, testified to the effect that an emergency housing shortage did not exist in the Town of Medley. The testimony was based on the facts that appellant’s land represented over ninety (90%) per cent of the rental space in the Town of Medley and said land had never been fully rented.

At the end of appellant’s case, appellee moved for a directed verdict. Said motion was granted and this appeal follows.

Appellant raises many points on appeal, however, in rendering our decision, we need only address ourselves to one. Appellant cites as error the lower court’s failure to make a declaration pursuant to Section 86.-011, Florida Statutes (1975).

With the above in mind, we note that the final judgment undertook a disposition of the controversy without rendering the declaratory relief sought by appellant. In so doing, we hold that the lower court erred. Local 532 of the American Federation of State and Municipal Employees, AFL-CIO v. City of Fort Lauderdale, 273 So.2d 441 (Fla.4th DCA 1973); Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514 (Fla.2d DCA 1967).

Reversed and remanded with instructions to enter a declaration as to the rights of the respective parties.


text:
    Raymond PRIETO, Jr., Appellant, v. RESERVE INSURANCE COMPANY, Appellee.
    No. 75-2000.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Richard Kanner, Miami, for appellant.

      Stephens & Schwartz and Jonathon P. Lynn, Miami, for appellee.
    Before HENDRY, Cl J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an action for a declaratory decree as to coverage under an insurance policy. Raymond Prieto, Jr., plaintiff-insured, takes this appeal from an adverse final judgment on the pleadings, denying coverage to him under a policy of contractors general liability insurance issued by defendant, Reserve Insurance Company. A second defendant, the Continental Insurance Company is not a party to this appeal.

This action stems from the collapse on August 8, 1974, of a building located in Miami, following which numerous wrongful death and personal injury lawsuits were filed. Prieto was named as a defendant in each of those suits. The allegations in the complaints concerning Prieto were that the collapse of the building and the resultant deaths and injuries were caused by negligent and unworkmanlike construction performed by Prieto, a licensed contractor, when he performed services in his capacity as a contractor on the building in 1971.

Reserve denied coverage under the policy of contractors general liability insurance issued to Prieto, claiming that the accident occurred outside the policy period, in that the policy commenced on July 8, 1969, and terminated on July 8, 1974. Based on Reserve’s denial of coverage, Prieto filed this complaint for declaratory relief, asserting that he is entitled to coverage under the policy in question. Reserve filed an answer denying coverage, and then moved for a judgment on the pleadings. Pursuant to the motion, the trial court entered a final judgment for Reserve, denying coverage for the damages arising out of the collapse of the building on August 8, 1974.

In this appeal, Prieto contends that the fact that the collapse occurred subsequent to the date of the termination of the policy does not change the fact that it stemmed from an occurrence which took place during existence of the policy, and thus, is covered by it. Prieto’s argument is that the occurrence was the negligence, if any, in the construction repairs or work done on the building in 1971, and that this was the cause of the dangerous condition resulting in deaths and injuries in the 1974 collapse. Prieto alleges that he obtained the policy of contractors general liability insurance in order to comply with Section 10-19 of the Dade County Metropolitan Code, which provides that all contractors holding certificates of competency shall maintain at all times, public liability insurance for bodily injury and property damage.

By its terms, the policy issued by Reserve provided coverage for an occurrence, which is defined therein as “an accident . which results during the policy period in bodily injury or property damage. . .”

We are unable to agree with Prieto’s contention that the occurrence in this case was the negligence, if any, in the construction work. We hold, based on the language of the insurance policy, that the “accident” in this case was the collapse of the building, and that it took place after the termination of the policy period. Therefore, the trial court did not err in entering final judgment on the pleadings in favor of defendant Reserve.

Affirmed.


text:
    David Avant LITHGOW, Appellant, v. Odessa W. LITHGOW, Appellee.
    No. 76-14.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Jan. 27, 1977.

      Edward C. Vining, Jr., and Richard A. Burt, Miami, for appellant.
    Joan A. Berk, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by David Avant Li-thgow, respondent-husband, from certain portions of a final judgment of dissolution of marriage. Six points are presented on appeal, three of which will be discussed in this opinion.

The first point is that the court erred in requiring the husband to keep in effect a $100,000 life insurance policy with the minor child of the parties as irrevocable beneficiary. In our opinion, it was within the trial court’s discretion and authority to order the husband to maintain his existent term life insurance policy with the child as irrevocable beneficiary. See Bosem v. Bosem, 279 So.2d 863, 865 (Fla.1973); Moore v. Moore, 311 So.2d 152 (Fla.3rd DCA 1975). We do, however, modify this provision of the final judgment to limit the husband’s requirement to maintain the life insurance policy to the extent that it is security for the support of the child in the event of the father’s death, until such time as the child reaches his majority.

The husband’s second point is that the final judgment is unlimited and erroneously overbroad in that paragraph 13 provides that the court

“. . . retains jurisdiction of the parties in the subject matter of the cause for the purpose of enforcing all terms of the Final Judgment and to enter any further orders which are equitable, appropriate and just.”

Although the husband contends that the language “any further orders which are equitable, appropriate and just” is open-ended, we construe it to mean that such retention of jurisdiction relates only to those issues adjudicated by the final judgment. See Moore v. Moore, supra.

The final point to be discussed is that the court erred in failing to grant partition of the marital domicile, where both parties requested partition. The record reflects that although the wife’s petition for dissolution of marriage and the husband’s answer requested that the court partition the property of the parties, the matter of partition of the marital home was not raised by either party at the final hearing, or at any other time. In the final judgment, the court awarded possession of the marital home to the wife and minor child. Inasmuch as it is within the power and discretion of the trial court to determine from all the circumstances the best interests of the child, it was not error to award the use of the home, acquired as an estate by the entireties, to the parent having custody of the child. See Brown v. Brown, 123 So.2d 298, 300 (Fla.3rd DCA 1960).

For the reasons stated, and on the authorities cited, we find that no reversible error has been shown by the appellant. Therefore, the final judgment is affirmed and modified to the extent that the provision requiring the husband to maintain life insurance should not extend beyond the time the child reaches majority.

Affirmed.


text:
    Stanley J. KLINE et al., Appellants, v. PYMS SUCHMAN REAL ESTATE CO. et al., Appellees.
    No. 76-274.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Jan. 26, 1977.
    McCormick, Bedford & Backmeyer, Miami, for appellants'.
    Bolles, Goodwin, Ryskamp & Welcher and Richard A. Friend, Pallot, Stern, Proby & Adkins, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Vivian Greene, Inc. v. Levine, 287 So.2d 135 (Fla.3d DCA 1973); Klein v. Shell Oil Company, 386 F.2d 659 (8th Cir. 1967); 12 Fla.Jur. Equity § 5 at 133 (1957) and Orkin Exterminating Co. of So. Fla. v. Truly Nolen, Inc., 117 So.2d 419 (Fla.3d DCA 1960).


text:
    PENMONT ENTERPRISES, INC., a Florida Corporation, et al., Appellants, v. Sally DYSART et al., Appellees.
    Nos. 76-951, 76-1602.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Jan. 21, 1977.

      Krongold, Bass & Ruvin, Miami, for appellants.
    Joseph Pardo, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Each of these two appeals is labeled interlocutory. The first seeks review of a final judgment of foreclosure. In their notice of appeal, the defendants state that “. . . this is not an appeal on the merits,” but that the “. . . Order appealed from is the denial of Defendants’ right to trial by jury. . . . ” The second appeal seeks a review of “. . . the Judgment for Attorney’s Fees. . . The appeals were consolidated for all appellate purposes. The appellees, plaintiffs below, have cross-assigned error in the second appeal claiming error in an order striking the names of certain defendants from those liable for plaintiffs’ attorney’s fees in the order allowing the fee.

The principal issue upon which the defendants claim a reversal of the final judgment of foreclosure is:

“On April 7,1976, Defendants filed Motion for Jury Trial with Respect to Count III of Plaintiffs’ Complaint for Cancellation and Rescission of Contract and requested a jury trial as to the set-offs it was claiming in their Counterclaim, for the amount due under the note was never disputed and it was admitted from the very first day of this litigation that no payments were made pursuant to the promissory notes.”

It is urged that the court erred in denying a jury trial prior to final judgment'in the foreclosure action on the counterclaim to count III. The record presented by the appellants in their appendix does not demonstrate that the non-jury trial of the equitable issues in the cause prior to the jury trial of the legal issues presented by the counterclaim deprived the defendants of any legal right. The procedure followed by the trial court was proper where the right to foreclose is demonstrated by the facts of the case. The defendants, having executed a purchase money mortgage and having received the possession of the business, have totally failed to make any payment on the indebtedness. The issues presented by count III of the complaint and the counterclaim thereto are severable and do not affect the right to foreclosure. See the rule stated in Commodore Plaza at Century 21 Condominium Association, Inc. v. Century 21 Commodore Plaza, Inc., 290 So.2d 539 (Fla.3d DCA 1974).

The remaining points in this appeal from the final judgment do not present reversible error.

Defendants’ second appeal is from an order for attorney’s fees entered after the final judgment. It is argued that because the whole litigation is not completed, no right to attorney’s fees can have been established. In view of our holding on the appeal from the final judgment, it is clear that the right to an attorney’s fee under the note and mortgage has arisen. The court has fully protected the defendants from any possible harm by an order that execution upon the order allowing an attorney’s fee is stayed pending further litigation.

Plaintiffs’ cross-appeal of the order allowing an attorney’s fee urges error in that the court did not include as defendants liable for the fee contain defendants who were found by the court to be guarantors of collection as distinguished from guarantors of the debt. We do not have before us the evidence upon which this determination was made. Therefore, the factual finding of the court may not be reversed here. See Broward County Port Authority v. F. M. Rule & Co., 119 So.2d 82 (Fla.2d DCA 1960).

The final judgment and the order allowing an attorney’s fee to the plaintiffs are affirmed.


text:
    The TOWN OF SURFSIDE, a Municipal Corporation, Appellant. v. COUNTY LINE LAND COMPANY, a Florida Corporation, Appellee.
    Nos. 76-1247, 76-1248, 76-1252 and 76-1253.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Jan. 26, 1977.

      Sibley, Giblin, Levenson & Ward, Miami, for appellant.
    Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

The Town of Surfside appeals an order enjoining it from accepting at its dump, refuse from outside corporations, municipalities or entities in this action to enjoin a public nuisance.

Plaintiff-appellee, County Line Land Company, owns real property adjacent to the Town of Surfside’s dump located in the ■unincorporated area of North Dade County. County Line acquired the property for the purpose of developing low cost FHA housing and in the years 1972 and 1973 constructed over 300 housing units. In 1974 County Line made all the necessary arrangements for the construction of approximately 300 additional homes when word was received from the FHA administrator that the proposed housing development was ineligible for mortgage insurance because of the subject property’s close proximity to the Surfside dump. Thereupon, County Line filed a complaint against the Town of Surfside and alleged that the operation of the dump constituted a public and private nuisance in that the dump is unsightly and emits foul and noxious odors; is infested with vermin and is a danger to underground water supplies. County Line prayed for a permanent injunction and money damages as a result of the FHA’s determination of ineligibility for mortgage insurance. Subsequently, in April 1976 County Line filed a motion for temporary injunction which was noticed for hearing on May 20. By order of May 6 the hearing was cancelled, the claim for injunctive relief was severed from the claim for damages, and June 24 was set as the date for the final hearing on the claim for an injunction. At the conclusion of the final hearing on June 24, the chancellor found that “there is an obnoxious situation at the Surfside dump and that that situation interferes and affects directly the health, safety, and welfare of the surrounding residential neighborhood as to the people and as to the environment.” Thereupon, she entered the following restraining order:

* * * * * *
“ORDERED AND ADJUDGED as follows:
“1. Commencing upon June 30, 1976, the city is enjoined from accepting refuse at its city dump from any place except from within its own city boundaries. No refuse is to be accepted that is not generated from within the Town of Surfside.
“2. The defendant city has until August 1, 1976, in which to show to this Court that it has substantially complied with regulation 17.7 of the Department of Environmental Regulation, or that it has received a temporary operating permit under that regulation, and unless that the obnoxious situation is controlled; the Court will then consider entering a permanent injunction prohibiting the use of said dump for any refuse disposal purposes.
“If on August 1, 1976, the defendant city shows the Court that it is fulfilling the requirements of said regulation 17.7, and most of the obnoxious situation that has been brought forth at the hearing has been corrected, or that a temporary operating permit has been issued to it, the Court will consider lifting the injunction against use of that dump by outside individual corporations, municipalities, or other entities.”
* # * * * *

The Town of Surfside appeals therefrom.

Surfside first argues that there is no substantial competent evidence that it is maintaining either a public or private nuisance which injures or affects appellee’s property. We cannot agree.

Anything which annoys or disturbs one in the free use, possession or enjoyment of his property or which renders its ordinary use or occupation physically uncomfortable may become a nuisance and may be restrained. Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 198 So. 819 (1940); Jones v. Trawick, 75 So.2d 785 (Fla.1954).

Expert testimony revealed that as a result of extensive areas of the site being inadequately covered with clean fill, serious problems existed as to obnoxious odors emanating therefrom, fires, attraction of flies, vermin and birds, aesthetically displeasing exposure of garbage and erosion created by the very fast runoff of water which carries contaminants as it runs off the edges of the site. A resident in the vicinity of the dump also testified concerning the foul odors coming from the dump and fly infestation. Thus, we conclude that there is sufficient evidence to support the chancellor’s determination that there is an obnoxious situation at Surfside’s dump and “that situation interferes and affects directly the health, safety and welfare of the surrounding residential neighborhood as to the people and the environment.” Cf. City of Lakeland v. Douglass, 143 Fla. 771, 197 So. 467 (1940); City of Miami v. City of Coral Gables, 233 So.2d 7 (Fla.3d DCA 1970).

In the second and third points on appeal, Surfside is contending that appellee lacks standing to maintain this action for injunctive relief in that there is no competent and substantial evidence that establishes the appellee has suffered a peculiar injury or damage not suffered by the general public.

The record reflects that counsel for Surf-side in open court stipulated to the fact that appellee has standing to bring this suit. Assuming there was no stipulation, we still find for appellee on this issue.

The interference with the enjoyment and value of private property rights is a special injury justifying a suit by a private individual to enjoin the nuisance. Soap Corporation of America v. Reynolds, 178 F.2d 503 (5th Cir. 1950) and Cf. City of Miami v. City of Coral Gables, 233 So.2d 7 (Fla. 3d DCA 1970) supra. There was sufficient competent evidence showing that as a result of the dump’s operation, appellee’s use and value of the subject property was being interfered with. Thus, these points of appellant are without merit.

Surfside next urges as reversible error the failure of appellee to exhaust its administrative remedies as required by Section 403.412(2)(c), Florida Statutes (1975), which is a condition precedent to the institution of these proceedings by appellee.

The fallacy in this argument is that appellee is not suing to enjoin the violation of Rule 17.7 of the Department of Pollution Control, but rather instituted this action based upon its common law right to abate a nuisance. See Wetzel v. A. Duda & Sons, 306 So.2d 533 (Fla. 4th DCA 1975). We also considered appellant Surfside’s final point that Rule 17.7 grants it until July 1,1977 to comply with its regulations and find no reversible error has been made to appear therein. See State ex rel. Shevin v. Tampa Electric Company, 291 So.2d 45 (Fla. 2d DCA 1974).

Affirmed.


text:
    S. Charles ADAMS, Appellant, v. Ann S. ADAMS, Appellee.
    No. 76-1302.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    S. Charles Adams, in pro. per.
    Sinclair, Louis, Siegel & Heath and Leonard H. Rubin and John L. Zavertnik, Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Charles Adams takes this interlocutory appeal to review an order directing him to pay child support until each of his minor children attain the age of 21.

On February 28, 1973 the chancellor entered a final judgment dissolving the marriage between Charles Adams and his wife, Ann, and directing Charles to pay temporary child support of $75 per week for the four minor children until further testimony could be taken. At a subsequent hearing, the chancellor on July 10, 1973 entered another final dissolution of marriage judgment reaffirming and republishing the February 28 judgment, and ordered Charles to pay $40 per week per child until further order of court. Ten days previous to the entry of this judgment, on July 1, 1973, Section 743.07, Florida Statutes became effective and lowered the age of majority from 21 to 18 years. On September 12, 1975 Ann filed a petition asking that the child support be increased and this petition was referred to a general master. Meanwhile, on March 2, 1976 two of the children attained the age of 18 and Charles discontinued the support payments for them. Thereafter, on May 25 the general master submitted his report wherein he found that the July 10, 1973 judgment awarding child support was in effect nunc pro tunc as of February 28, and concluded that Charles was obligated to pay support for each of the children until they reached the age of 21. On June 7, 1976 the chancellor adopted the report and ordered Charles to pay support until each child attains the age of 21 or until further order of court.

On appeal Charles argues that where a temporary award of child support was entered in February 1973, and where the age of majority was reduced by the legislature on July 1, 1973 from 21 to 18 years and a final judgment for child support was entered on July 10, 1973 providing for child support payments until further order of court, the obligation to pay child support extends only to age 18. We disagree.

Section 743.07(3), Florida Statutes (1973) clearly provides that it is to operative prospectively, not retrospectively and shall not affect obligations existing prior to July 1, 1973.

With the entry of the February 28, 1973 judgment Charles’ obligation to pay child support became fixed at that time, and the chancellor was eminently correct in requiring him to pay child support until each child attains the age of 21. See Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Finn v. Finn, 312 So.2d 726 (Fla.1975).

Affirmed.


author: GRIMES, Judge.

text:
    ART ADVERTISING CO., INC., a corporation, Appellant, v. The ASSOCIATED PRESS, a corporation, Appellee.
    No. 75-1797.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1977.
    Michael D. Martin, of Martin & Martin, Lakeland, for appellant.
    Lester Bales, Jr., Zephyrhills, for appel-lee.
   GRIMES, Judge.

This is an appeal from an order entered in connection with supplemental proceedings directing a levy upon certain joint accounts.

Appellee (Associated Press) obtained a judgment against appellant, Art Advertising Co., Inc. (Art Advertising), for $3,500.70 plus costs. Upon the return of an unsatisfied execution against Art Advertising, Associated Press obtained an order appointing a special master and requiring Robert A. Artabasy, the former president of Art Advertising, to appear before the special master and give testimony in supplementary proceedings pertaining to the business and property of Art Advertising.

The special master held a hearing at which Mr. Artabasy gave testimony. The special master then entered an order finding that subsequent to the entry of the judgment, Art Advertising sold its property, to wit: a radio station, without execution of a Bulk Sales Law affidavit and immediately commenced proceedings for dissolution of the corporation. The master further found that the proceeds of the sale were placed in the trust account of Art Advertising’s attorney and then turned over to Mr. Artabasy who placed them in a joint bank account with his wife in a Dade City bank. Finally, the master found that Mr. Artabasy then paid off certain corporate expenses as well as some ostensible debts of the corporation to his relatives. The balance of the funds were transferred to two joint accounts in the Exchange Bank of Winter Haven and a joint account in Winter Haven Federal Savings & Loan Association. The master recommended that Mr. Artabasy be held personally liable for the judgment.

Pursuant to the motion of Associated Press, the court then entered an order approving the master’s report and directing the levy upon the three joint accounts of Robert A. Artabasy and Phyllis Artabasy, his wife, for the amount owing to Associated Press. - While not parties to the suit, Robert A. Artabasy and Phyllis Artabasy joined Art Advertising in an appeal from this order.

We are compelled to reverse because the joint accounts of Mr. and Mrs. Artabasy are being subjected to levy by virtue of a proceeding in which neither of them has ever been joined as parties. Section 56.29, Florida Statutes (1975), specifically authorizes the court to require Mr. Artabasy to appear before a special master to give testimony concerning the corporation’s property. However, when it was developed that the corporation’s property had been transferred to third parties, it became necessary to join those third parties in the proceeding.

The case of Meyer v. Faust, 83 So.2d 847 (Fla.1955), is precisely on point. There, the plaintiff obtained a judgment against Meyer. Upon return of execution nulla bona, supplementary proceedings were instituted whereby Meyer and his wife were directed to be examined concerning the property of Meyer. After hearing the testimony, the court concluded that Meyer’s investment of certain funds into property held by Meyer and his wife as tenants by the entireties was fraudulent as to the plaintiff. The court entered an order permitting Meyer’s judgment debt to be collected by execution upon the entireties property. On appeal, the Supreme Court reversed because Meyer’s wife had not been impleaded as a party to the proceedings. The court said:

. . And it is equally clear from the cases construing Sec. 55.57, F.S.1953, F.S.A., upon which the court depended in the instant case, that ‘no order directing the sheriff to take any property alleged to have been fraudulently transferred should be made on the prima facie showing contemplated by [the statute] unless every person whose rights may be affected thereby, and who is-not already a party to the proceedings, be by said order impleaded and made a party thereto and afforded by the terms of said order full right to be heard and cited and directed to file an answer setting up his claim to the property within a reasonable time to be fixed by the order, a copy of which should be served upon him.’ Richard v. McNair, 121 Fla. 733, 164 So. 836, 841; Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483. The necessity for this requirement as an element of constitutional due process has been uniformly recognized, even in those decisions giving the most liberal construction to the statute in. question. Dezen v. Slatcoff, Fla., 66 So.2d 483; Riley v. Fatt, Fla., 47 So.2d 769; State ex rel. Phoenix Tax Title Corporation v. Viney, 120 Fla. 657, 163 So. 57.
“It will be noted from the facts in this case, detailed above, that the court below directed the order for proceedings supplementary against appellant as well as her husband, although the judgment creditor failed to implead her by affidavit initiating the proceedings. Even if the order, under these circumstances, could be considered sufficient to make appellant a party to the proceedings, it gives notice only of a proposed examination ‘concerning the property of the defendant, Theodore Meyer,’ (e. s.) and would not, therefore, contemplate an inquiry of the scope necessary to an adjudication of adverse interests under Sec. 55.57, supra. And, manifestly, the subsequent oral order to show cause by written brief on law and fact fell short of being an opportunity for ‘full and fair hearing’ as contemplated by the requirement that parties other than the judgment debtor should be ‘given an opportunity to fully and fairly present their claims as parties entitled to a full and fair hearing after the making up of definite issues to be tried.’ . .

See also Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483 (1935); Crawford v. United States Fidelity and Guaranty Co., 139 So.2d 500 (Fla. 1st DCA 1962).

REVERSED and REMANDED.

HOBSON, Acting C. J., and SCHEB, J., concur.


text:
    John Arthur DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. AA-43.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1977.
    Richard W. Ervin, III, Public Defender, Louis G. Carres, David J. Busch, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

While our review of the record on this appeal reveals evidence of mitigating circumstances which we consider would be persuasive in a proceeding by appellant seeking executive clemency, we find no reversible error and find the evidence legally sufficient to support the verdict and judgment.

AFFIRMED.

BOYER, C. J., McCORD, J., and MCDONALD, PARKER LEE, Associate Judge, concur.


author: DIXON, Justice. DENNIS, J., MARCUS, Justice DENNIS, Justice, concurring in denial of rehearing.

text:
    STATE of Louisiana v. Donald Ray GAINES.
    No. 57958.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Concurring Opinion Jan. 21, 1977.
    Lawrence R. Anderson, Jr., Anderson & Roberts, Baton Rouge, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Ossie B. Brown, Dist. Atty., Ralph Roy, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On July 10, 1975 defendant, Donald Ray Gaines, was indicted by the East Baton Rouge Grand Jury for the first degree murder of Rita Decuir, a violation of R.S. 14:30. On December 15, 1975 the trial began and on December 17, 1975 a unanimous jury found the defendant guilty as charged. Motions for a new trial and in arrest of judgment were denied on December 23, 1975 and the trial court on that date sentenced the defendant to death. The defendant appeals relying upon twelve assignments of error. Due our disposition of this case we will only discuss Assignments of Error Nos. 2 and 3.

The defendant was tried as a principal to first degree felony murder for his participation in an armed robbery of the Southside Grocery in Baton Rouge on December 20, 1974 at approximately 1:00 p.m. during which the victim was shot and killed by Steve Perkins. It was established that on that occasion two men dressed in jeans, jean jackets and hats with bandanas over a large portion of their faces entered the Southside Grocery with guns drawn. One man was slightly shorter than the other and the shorter man told the two clerks, Sharon Haynes and Rita Decuir, to lie on the floor. Apparently Ms. Decuir hesitated in getting on the floor and the taller man shot and killed her. The robbers then took about $30.00 and fled on foot.

At defendant’s trial Sharon Haynes identified the accused as the shorter man. However, the issue of identity was strongly contested. It was established that the witness had seen the defendant prior to this occasion but that she did not identify him as one of the participants until the following night, some thirty hours later. She could not identify the taller man. (The other man was identified in another case as Steve Perkins and was convicted of this crime). In addition to the weak identification, the defense rested on an alibi.

At the hearing on the State’s request to admit evidence of another robbery in which the defendant allegedly participated, the defendant objected on two grounds. Primarily the defense contended that the other crime did not fit within any established exception to the rule prohibiting the introduction of evidence of other crimes. The judge ruled that the evidence would be admissible. When the evidence was sought to be introduced the defendant again objected and, when overruled, properly made this his Assignment of Error No. 2. In addition, in the defendant’s Assignment of Error No. 3, the defendant contends it was error to deny his motion for a new trial made on the ground that the admission of this evidence constituted prejudicial error.

The evidence of similar acts consisted of the following:

On December 18, 1974 at approximately 5:30 p.m. two men, one slightly taller than the other, entered the State Cleaners in Baton Rouge (between one and two miles from Southside Grocery). The taller man, identified as Steve Perkins, went up to the proprietor and told him to “give me your money,” at which point the taller man pulled out a pistol and attempted to put a bandana to his face. The shorter man, identified as the defendant in this case, did not have a gun nor a bandana and both men were dressed only in “T-shirts” and jeans. The taller man then told the proprietor to get down on the floor after this had allegedly been suggested to the taller man by the defendant. The proprietor was not harmed but the robbers took approximately $80.00 and fled on foot.

In his notice to the defendant the prosecutor indicated that he would introduce evidence of the December 18 armed robbery to prove intent, guilty knowledge, system and identity. R.S. 15:445 provides:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”
R.S. 15:446 provides:
“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

These statutes and the jurisprudence construing them rest on the proposition that if the sole relevance of other acts is to prove the defendant’s criminal disposition, then the evidence is inadmissible character evidence. Although it can be effectively argued that evidence of other offenses is inadmissible because it is irrelevant to any issue in the trial for the crime charged, it can also be argued that this character evidence is relevant to guilt generally, because, having committed this kind of crime before, the defendant is at least capable of the criminal activity charged. Under either analysis, however, the evidence has been uniformly excluded due to the fact that the evidence presents an inordinate risk of prejudice. The prejudice results from various factors, among which are: (1) the strong possibility that the jury will be unduly swayed in its determination of guilt merely because the defendant is a “bad man,” (2) the possibility that the evidence may confuse the jury in collateral issues and detract their attention from the main issue of the defendant’s guilt for the crime charged, and (3) the danger of unfair surprise.

Therefore, accepting the argument that this evidence is highly relevant, the evidence is nonetheless excluded, not because it fails to tend to prove the defendant’s guilt, but because it does it too well and thereby deprives the “bad man” of the fair trial and benefit of the presumption of innocence and the State’s burden of proof. However, when the extraneous offense is logically relevant to prove a material issue before the jury and is not merely offered to prove that on this occasion the accused probably acted in conformity with his “criminal disposition,” then the evidence should not be excluded merely because it shows that the accused has committed other offenses.

In State v. Moore, 278 So.2d 781, 785 (La.1973), this court established a framework within which to analyze whether an extraneous offense is admissible. We held at the outset that the evidence must be “relevant.” This requisite referred not to whether the extraneous offense tended to prove the defendant’s criminal disposition and thus his “guilt.” Rather, it referred to the question of whether the evidence tended to prove an element of the State’s case other than the defendant’s character. That is, was the evidence independently relevant as tending to prove knowledge, intent, identity, etc. If in the initial analysis the court determines that the evidence only tended to prove the defendant’s bad character, then it was not “relevant” and should be excluded on policy grounds. If, however, the evidence did tend to prove an element of the State’s case, then the evidence was “relevant” but was only admissible if the probative value of the evidence on that element outweighed its prejudicial effect. This second factor in the analysis allows the court some measure of discretion in determining, once the extraneous offense is found to have substantial independent relevance, whether it should nonetheless be excluded if it tends to influence the jury’s determination of guilt or innocence due to less rational factors such as emotion.

The State initially indicated four reasons to justify the introduction of the December 18 armed robbery, but in oral argument before this court appeared to admit that the evidence was only relevant on the issue of identity. When the two men entered the Southside Grocery on December 20 both had revolvers drawn, both were masked, the victims were told to lie on the floor, and they fled after taking $80.00. It was clear that the two men intended to rob the clerks in the store; thus, guilty knowledge and intent were not at issue. Likewise, the identification by the proprietor of State Cleaners in no way corroborated Sharon Haynes’ identification of the accused as a participant in the case at bar. State v. Hicks, 301 So.2d 357, 365 (La.1974). Thus, identification by the witness to the State Cleaners robbery is not probative of the commission of the Southside Grocery robbery.

Therefore, if the evidence of the December 18 armed robbery was admissible at all, it was admissible under the “system” or modus operandi exception. Of course the “system” exception originally contemplated by R.S. 15:446 is not applicable here in the sense that the term is meant to apply to continuity of two or more activities for the completion of an offense. State v. Hicks, supra. Rather, our jurisprudence allows evidence of other offenses to prove what is called “system” in robbery prosecutions.

All robberies exhibit certain common modes of operation such as the use of force to obtain something of value, often from small business establishments. Although the earlier jurisprudence was quite liberal in the application of the system exception, State v. Prieur, 277 So.2d 126 (La.1973), and other cases have more clearly delineated and limited the scope of “system.” The earlier cases appeared to recognize that the relevance of the extraneous offense lies in the inference that because the accused has committed somewhat similar crimes in a general area, it is more likely that he committed the crime at bar. The more recent cases have limited the scope of inquiry into extraneous offenses since it permits the introduction of mere disposition, i. e. character, evidence. Even though this character evidence may be more probative than most due to the close proximity in time, etc., it still only tends to place the defendant’s character before the jury and its prejudicial aspects predominate.

Thus, the recent opinions of this court closely analyze the two transactions in order to determine whether they both exhibit such peculiar modes of operation to distinguish them as the work of one person. If this can be shown, then the evidence of the extraneous crime is highly relevant to identity, because the inference would be strong that the person who committed the other crime was the same person who committed the crime at bar (not because he is a “bad man,” nor because of a proclivity toward such conduct, but because it is so unlikely that another person would carry out the crime in such a manner). In such cases the identification of the perpetrator of the extraneous crime is highly probative of the identity of the perpetrator of the crime for which the defendant is on trial and, thus, the evidence does not solely tend to prove the defendant’s bad character.

The evidence that the defendant committed the robbery of the State Cleaners on December 18 is simply not probative of the identity of the perpetrator of the Southside Grocery robbery-murder on December 20. To be sure, both robberies exhibited similar characteristics. Both were robberies of a business establishment in the afternoon perpetrated by two men, one slightly shorter than the other, dressed in blue jeans. In both at least one man told the occupants of the establishments to lie on the floor. But these characteristics are common to many robberies. There are also obvious dissimilarities between the modus operandi exhibited by the defendant in the State Cleaners robbery and the perpetrator of the robbery-murder at Southside Grocery. At State Cleaners on December 18 the defendant, unlike the shorter man at Southside Grocery, did not have a gun, was not dressed in a jacket or cap, and did not have a bandana masking his face. The guns were drawn when the men entered Southside Grocery but the one gun used in the State Cleaners robbery was drawn after the two men entered the store and had demanded the proprietor’s money. Finally, the State Cleaners robbery did not result in the loss of life. Although the taller man in the December 18 robbery attempted to put a bandana to his fact at one point, this fact does not tie the defendant (identified as the shorter man) to the robbery of Southside Grocery on December 20.

The two robberies do not reflect such similar characteristics that an inference is warranted that the same person committed both. True, the locality, the proximity in time, the number of men and the approximate size and age of the suspects create a suspicion which the police should check. However, these factors only tend to point to the defendant as a likely suspect because it is reasonable to conclude that the defendant’s criminal disposition might lead him to commit another robbery; these factors do not tend to show to any degree of certainty that the defendant in fact was the perpetrator of the Southside Grocery robbery-murder. Thus the evidence only served to place the defendant’s bad character before the jury and its admission constitutes reversible error. State v. Harrison, 291 So.2d 782 (La.1974); State v. Moore, supra.

For the foregoing reasons, the conviction and sentence are reversed and the case is remanded to the trial court for a new trial.

DENNIS, J.,

concurs. Under the facts here in which the defendant’s confederate was not identified as being the same person involved in both robberies, and given the other dissimilarities, the ruling of the majority is correct.

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

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In my view, the evidence of this similar act was clearly admissible to show system, knowledge and intent under La.R.S. 15:445 and 446. Moreover, the probative value of the evidence outweighed its prejudicial effect. Accordingly, I respectfully dissent.

ON APPLICATION FOR REHEARING

DENNIS, Justice, concurring in denial of rehearing.

The majority opinion ably discusses the general rule excluding evidence of other crimes and the exception thereto allowing introduction of such evidence for the purpose of showing that the other crime committed by the accused was so nearly identical in method, or modus operandi, as to earmark both offenses as the handiwork of the accused. The State argues in its application for rehearing that evidence of the other crime was properly admissible here, despite the many dissimilarities pointed out in the original opinion of the Court, because there was evidence that the defendant Gaines committed both the charged offense, the Southside Grocery robbery, and the pri- or offense, the State Cleaners robbery, with the identical crime partner, Steve Perkins.

I agree that in a proper case the common feature of the same accomplice’s presence, considered in combination with other common marks, may invest the evidence of the other crime with sufficient distinctiveness to make it admissible, if its probative value outweighs its prejudicial effect. However, before evidence of a prior crime can be considered eligible for admissibility on this basis it must be established that the accused employed the same confederate in both crimes by clear and convincing evidence. This follows analogously from the clear and convincing evidence rule adopted by most courts which have considered the standard of proof to be required in establishing the other crime. According to McCormick,

“ * * * In the first place, it is clear that the other crime, when it is found to be independently relevant and admissible, need not be established beyond a reasonable doubt, either as to its commission or as to defendant’s connection therewith, but for the jury to be entitled to consider it there must of course be substantial evidence of these facts, and some courts have used the formula that it must be ‘clear and convincing.’ And it is believed that before the evidence is admitted at all this factor of the substantial or unconvincing quality of the proof should be weighed in the balance.
“Two considerations, one substantive and the other procedural, affect the ease or difficulty of securing admission of proof of other crimes. The first is that the courts are stricter in applying their standards of relevancy when the ultimate purpose of the state is to prove identity, or the doing by the accused of the criminal act charged than they are when the evidence is offered on the ultimate issue of knowledge, intent or other state of mind. The second is that when the crime charged involves the element of knowledge, intent, or the like, the state will often be permitted to show other crimes in rebuttal, after the issue has been sharpened by the defendant’s giving evidence of accident or mistake, more readily than it would as part of its case in chief at a time when the court may be in doubt that any real dispute will appear in the issue.” (Footnotes omitted.) McCormick on Evidence, § 190, pp. 451, 452 (2d ed. 1972).

The evidence in the instant case that Steve Perkins was an accomplice of Gaines in committing the Southside Grocery robbery was not clear and convincing. The eyewitness was not able to identify the accomplice. Essentially, the evidence which indicated Perkins could have been the accomplice consisted of two pre-trial custodial statements which prosecution witnesses said were made by Gaines, one in which he stated Perkins committed the crime with him, and another in which he denied his own complicity but accused Perkins of having confessed to the crime at a party. At trial, Gaines took the stand and denied that any of these facts were true, and altogether denied having made one of the statements. Thus the connection of Steve Perkins to the Southside Grocery robbery depends upon the statements of Gaines, who proved to be a patently unreliable witness.

In view of the poor quality of the evidence linking Perkins to the charged crime as the defendant’s accomplice, the State did not establish by clear and convincing evidence that the other crime committed by the accused was so nearly identical in method, i.e., that in both crimes the accuse employed the identical crime partner under closely similar circumstances, as to earmark both offenses as the handiwork of the accused. Therefore, evidence of the other crime did not fit within an exception to the rule excluding evidence of prior offenses and should have been excluded. For cases presenting modus operandi evidence of a more convincing nature involving use of the same accomplice see State v. Lee, - So.2d - (La.1976); People v. Haston, 69 Cal.2d 233, 70 Cal.Rptr. 419, 444 P.2d 91 (1968). See generally, 2 Wigmore on Evidence, § 411 (3d ed. 1940); McCormick on Evidence, § 190, p. 449 (2d ed. 1972).

I respectfully concur in denying the application for a rehearing.

      . “Clearly, evidence which only tends to show the bad character of the accused is inadmissible, except in rebuttal when the accused has introduced evidence to show his good character. R.S. 15:481. Even for impeachment purposes, our statutes limit evidence of other crimes to former convictions. No prior arrest, indictment or prosecution is admissible. R.S. 15:495. And when, in general, credibility is attacked, the inquiry cannot go into ‘particular acts, vices or courses of conduct.’ R.S. 15:491.- ” State v. Moore, 278 So.2d 781, 787 (La. 1973).

      . McCormick stated that the process is one of “balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.” C. McCormick, Evidence § 190 at 453 (Cleary ed. 1972).

      . State v. Hicks, 301 So.2d 357, 364 (La.1974); State v. Harrison, 291 So.2d 782, 784 (La.1974); State v. Prieur, 277 So.2d 126, 129 (La.1973). Although specific intent to kill or inflict great bodily harm was an “essential part of the inquiry,” the evidence of the defendant’s participation in the December 18 armed robbery is not probative of this intent.

      . This case is thus distinguishable from State v. Banks, 307 So.2d 594 (La. 1975), wherein the defendant contended that the witness who identified him as the perpetrator in the case at bar made a mistake. Thus, in order to refute this allegation and to corroborate the witness’ identification, it was relevant to elicit evidence of an identical transaction, so close in time to the first, in which the same witness had identified the accused.

      . E. g. State v. Vince, 305 So.2d 916 (La.1974); State v. Hicks, 301 So.2d 357 (La.1974); State v. Harrison, 291 So.2d 782 (La.1974); cf. State v. Moore, 278 So.2d 781 (La.1973).

      . See discussion above.

      . “The fact that the offenders were black in each case has no bearing on similar modus operandi.” State v. Hicks, 301 So.2d 357, 364 (La.1974).


author: TATE, Justice.

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION, Appellee.
    No. 58558.
    Supreme Court of Louisiana.
    Oct. 21, 1976.
    Rehearing Denied Nov. 5, 1976.
    Norman C. Frost, J. Robert Fitzgerald, Birmingham, Ala., M. Robert Sutherland, Victor A. Sachse, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
    Marshall B. Brinkley, Gen. Counsel, LPSC, Baton Rouge, Saul Stone, Michael R.

      Fontham, Anthony M. DiLeo, Stone, Pig-man, Walther, Wittmann & Hutchinson, New Orleans, for defendant-appellee.
   TATE, Justice.

The issue posed by this appeal is whether, pending review of its application to secure higher rates, the plaintiff utility is entitled to interim relief, by way of preliminary injunction, permitting it to charge increased rates allegedly shown to be justified by affidavits filed on its behalf.

By the principal demand, the plaintiff utility (“South Central Bell”) seeks judicial review of the defendant commission’s denial of a rate increase. Suit was filed for this purpose in the district court of the commission’s domicile, as authorized by Article 4, Section 21E, La. Constitution of 1974. See also La.R.S. 45:1192, which provides for preferential hearing and speedy determination of such suits.

The present appeal does not concern the merits of the rate increase sought. Ancillary to the principal demand for judicial review, the petition prays for a preliminary injunction authorizing the utility to impose increased rates (subject to refunding, if found to be unwarranted, and under proper bonding to protect subscribers’ refunds) in order allegedly to prevent confiscation of the utility’s investment pending judicial review. La.C.Civ.P. arts. 3601 et seq. The present appeal is solely from the trial court’s denial of such interlocutory relief. La.C.Civ.P. art. 3612.

In denying the relief, the trial court noted that South Central Bell had earned a rate of return of 8.6% on equity during 1975. It further noted that, although on South Central Bell’s showing, the rate for 1976 may have slipped below this return, “there is no indication that its earnings have dropped so drastically as to project an impending financial crisis or a serious curtailment of operations”.

The trial court therefore held that South Central Bell had not made the exceptional showing of irreparable injury required before interlocutory injunctive relief may be afforded against the presumptively-valid determinations of the commission, constitutionally entrusted with primary responsibility in rate determinations. Central La. Tel. Co. v. Louisiana Pub. Serv. Comm., 262 La. 819, 264 So.2d 905 (1972). The court further rejected “the extraordinary relief” sought by South Central Bell, under the present circumstances, “where the usual and customary judicial review of the Commission’s order may be completed with a minimum of delay.”

We find no reason to disturb the findings or conclusions of the trial court. Absent a showing of confiscation of property violating federal due process (Fourteenth Amendment) or state property-protection (Article 1, Section 4, La. Constitution) constitutional guarantees, the courts should not, under long-established principles, afford interim injunctive relief pending our constitutionally-established method of orderly judicial review of the commission’s rate determinations. The showing is not here met.

In South Central Bell Tel. Co. v. La. Pub. Serv. Com’n., 256 La. 497, 236 So.2d 813 (1970), we likewise rejected a request for interim injunctive relief to permit a rate increase pending final determination of a rate-increase application by the utility. For the reasons there set forth, 236 So.2d 816-17, we likewise affirm the present rejection of a similar request for interim injunctive relief permitting court-imposition of a rate-increase prior to full judicial review of whether it is warranted in whole or in part:

“Under Article 6, Sections 3-9, of the [1921] Constitution of Louisiana [now Article 4, Section 21, La.Const. of 1974] the Public Service Commission has exclusive jurisdiction in the first instance to fix or change any rate to be charged by a public utility, and the courts are without power to fix or change rates until that Commission has acted. Nevertheless, a violation of constitutional rights, such as confiscation of property, would require a court to exercise the necessary authority to grant relief from the constitutional abuse.

“The Company’s contention, simply stated, is that, principally because of the increased cost for acquisition of capital, present rates and charges for services yield a rate of return so inadequate as to be confiscatory, and that it must be allowed an immediate rate increase. * * *

“We need not, indeed we cannot, determine what are valid permanent rates and charges. We can determine only whether a continued imposition of present tariffs would constitute confiscation of the Company’s property. Although it may be that the Company should receive a higher rate of return on its investment and is entitled to have the Commission fix rates and charges which will produce such a return, the record does not justify a finding that the present rate of return is so inadequate as to be confiscatory. * * *

“We reiterate: We are not here concerned with a determination of reasonable telephone rates and charges or with a valid yield of return on the Company’s investment for its operations. We pass only upon the question of whether the Commission’s action or inaction amounts to a constitutional violation — that is, confiscation of the Company’s property. We hold that the Company has failed to establish that the Commission’s enforcement of present rates is tantamount to confiscation.”

See also: South Cent. Bell Tel. Co. v. Louisiana Pub. Serv. Com’n., 272 So.2d 667 (La.1973); Southern Bell Tel. & Tel. Co. v. Louisiana Pub. Serv. Com’n., 232 La. 446, 94 So.2d 431 (1957); Southern Bell Tel. & Tel. Co. v. Louisiana Pub. Serv. Com’n., 183 La. 741, 164 So. 786 (1935).

As the cited decisions hold, a utility does not demonstrate irreparable injury for purposes of interlocutory injunctive relief simply upon its ex parte showing, in advance of full judicial review, that the rates ordered by the commission might be adjusted upward after full judicial review:

The issue as thus posed would require a judicial evaluation of the merits of the rate-increase, in advance of the full and orderly review of the issue contemplated by our state constitution. The courts will not attempt such piecemeal interlocutory review, in derogation of the full judicial review contemplated by our constitution.

During the pendency of judicial review, the rates determined by the commission remain in effect. No interlocutory injunctive relief is available to the utility, unless the rates so fixed are indisputably shown to be violative of constitutional rights protecting property rights against confiscatory treatment.

Mere temporary (claimed) inadequacy of rates does not satisfy the exceptional showing of unconstitutional confiscation required before the courts may afford interlocutory injunctive relief. In the absence of such showing, our state constitution contemplates that, pending judicial review, the rates ordered by the commission will remain in effect as presumptively valid until modified, after full hearing on the merits, upon judicial review.

Accordingly, we affirm the judgment of the trial court, which denied the interlocutory injunctive relief sought, by which plaintiff utility could have imposed higher rates pending judicial review of the merits of its application for such higher rates. The plaintiff utility is cast with the costs of the present appeal.

AFFIRMED.

SUMMERS, J., dissents and was of the opinion that a rehearing should be granted.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Norman J. CLARK.
    No. 57438.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Norman J. Clark, the defendant, with the distribution of heroin, a violation of LSA-R.S. 40:966. The first trial ended in a mistrial. However, at his second trial the jury returned a verdict of guilty as charged. The defendant received the mandatory life sentence.

The defendant appeals, relying on eight assignments of error. Nine assignments of error are considered abandoned as they were neither briefed nor argued. State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975); State v. Richmond, La., 284 So.2d 317 (1973).

The defendant filed a pro se brief, supplementing the arguments of his counsel.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

The defendant contends that the trial judge erred in denying his challenges for cause as to two prospective jurors, Maloof and Coulter. His grounds were Coulter’s position as a volunteer coach for a police combat team and Maloof’s position as Assistant to the Engineer in the Engine Room in the Traffic Court Building. The defense contended that these prospective jurors did not satisfy the requirement of impartiality. See LSA-C.Cr.P. Art. 797(2).

In answering the trial judge’s questions as to their partiality, both jurors stated that the contacts mentioned would not affect their deliberations. (Tr. pp. 2 and 3) In addition, both prospective jurors responded affirmatively to the following question posed by the court:

“Do you feel like you could give the defendant a fair and impartial trial, the same kind of trial you would want if you were on trial?”

(Tr. p. 2; see Tr. p. 3)

Upon reviewing the entire voir dire examination we find no abuse of discretion by the trial judge in overruling the defense’s challenges. State v. Weathers, La., 320 So.2d 895 (1975); State v. Jones, La., 315 So.2d 650 (1975); State v. Richmond, supra; State v. Flucas, 262 La. 625, 264 So.2d 586 (1972); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).

ASSIGNMENT OF ERROR NO. 6

The defendant complains that the notice of the State’s intention to introduce a confession or an inculpatory statement was untimely in that it prevented him from adequately preparing a defense.

The record indicates that the defendant received the written notice on the morning of trial prior to the State’s opening statement.

Louisiana Code of Criminal Procedure Article 768 provides in pertinent part:

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement.”

Since the State complied with the time set forth in the article, we find this assignment of error devoid of merit. State v. Morris, 259 La. 1001, 254 So.2d 444 (1971), U.S. cert. denied 406 U.S. 959, 92 S.Ct. 2066, 32 L.Ed.2d 346 (1972).

ASSIGNMENTS OF ERROR NOS. 8 AND 15

The defendant asserts that the trial judge erred in failing to order certain testimony stricken from the record, or alternatively in denying his Motion for a Mistrial based on a refusal to admonish the jury to disregard this testimony. Counsel objected on the ground that such testimony was “prejudicial opinion.”

The witness testified as follows:
Q. “When the purchase price of $104 was decided upon, what did Carolyn Clark do in relationship to this defendant, if anything?
A. She looked into the direction of Mr. Norman Clark, as if to get permission, to see if that was okay. At this time he nodded his head and then she got up and departed and got the exhibits [the heroin].”

Tr. pp. 111-112.

Defense’s alternative argument cannot be considered by this Court. Counsel neglected to move either for a mistrial or a jury admonition when the witness testified. LSA-C.Cr.P. Art. 771; State v. Thorson, La., 302 So.2d 578 (1974).

The trial judge properly overruled the defense objection to strike the testimony from the record. While it is well settled that a lay witness may not give opinion testimony, it is equally well settled that on subjects which any person of experience may make a natural inference from facts observed, a lay witness may testify as to such inferences provided he also states the facts observed. State v. Neal, La., 321 So.2d 497 (1975); State v. Davalie, La., 313 So.2d 587 (1975); State v. St. Amand, La., 274 So.2d 179 (1973). This testimony is a natural inference from the facts observed.

Assuming arguendo that any portion of this testimony was inadmissible, we find that the trial judge committed harmless error in admitting it. The jury heard the identical testimony given by the same witness on direct examination without any objection by defense counsel. LSA-C.Cr.P. Art. 921; State v. Smith, La., 285 So.2d 240 (1973); State v. Maiden, 258 La. 417, 246 So.2d 810 (1971).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 14, PRO SE BRIEF ARGUMENT NO. 1

In his pro se brief, the defendant contends that the trial court erred in denying his motion for a Directed Verdict. LSA-C. Cr.P. Art. 778. He argues that the State failed to prove every element of the crime charged.

When the defense asserts that the judge committed reversible error in denying his Motion for a Directed Verdict, this Court will overturn the conviction only if there is no evidence of an essential element of the crime. State v. Smith, La., 332 So.2d 773 (1976); State v. Butler, La., 331 So.2d 425 (1976); State v. Kaufman, La., 331 So.2d 16 (1976).

The State’s witnesses were a forensic chemist, an undercover agent, and a supervising narcotics agent. They testified that the undercover agent and two informers purchased nine packets of heroin for $104 from the defendant and his sister. This transaction took place at the defendant’s sister’s home.

This testimony constitutes some evidence of the crime charged. Therefore, this contention is without merit.

PRO SE BRIEF ARGUMENT NO. 2

The defendant alleges that the State’s failure to produce the informants at trial prejudiced him.

We consider this allegation improperly before us. The defendant neither voiced any objection nor presented any assignment of error concerning this to the trial court. LSA-C.Cr.P. Art. 841; State v. Charles, La., 326 So.2d 335 (1976); State v. Nix, La., 327 So.2d 301 (1975); State v. Pickett, La., 325 So.2d 252 (1975).

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

      . In brief, defense counsel refers to these arguments as Assignments of Error Nos. 8 and 13. However, the record indicates that the correct numerical listing should be Assignments of Error Nos. 8 and 15.

      . Act 527 of 1975 eliminated the Directed Verdict in all jury trials. This trial occurred in December of 1974, before the effective date of this amendment.


text:
    STATE of Louisiana, Appellee, v. Melvin L. BROWN, Appellant.
    No. 57704.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Ralph R. Miller, Norco, Charles C. Wilson, Hahnville, St. Charles Indigent Defender Program, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Parish of Jefferson, Melvin P. Barre, Dist. Atty., 29th JDC, Abbott J. Reeves, Director, Research and Appeals Division, Parish of Jefferson, Metair-ie, Lindsay A. Larson, Sp. Counsel, Parish of Jefferson, for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of the second-degree murder of his wife, La.R.S. 14:30.1 (1973), and sentenced to life imprisonment. Upon his appeal, the defendant relies upon eleven assignments of error. For reasons to be assigned, we affirm.

The context facts show:

The defendant was separated from his wife. On the day of her death, earlier in the afternoon he had persuaded her to return to the residence. The police were called afterwards; Mrs. Brown then informed them she desired to return to her mother’s house, where she had been residing since the separation.

Later that day, the defendant’s wife and her mother left the latter’s home to go shopping. When they stopped at a friend’s house, the defendant (who had apparently followed them in his vehicle) ran into the mother, then alighted and grabbed and bit her, and then took his wife into his own vehicle and returned to his own home with her.

The police went to the defendant’s home. They found the wife shot dead, with the husband beside her still conscious. The defendant told the officers that he had also shot himself, in attempted suicide.

Assignments 1, 2, 5, 7

The principal assignments of error relate to the alleged improper reference in the opening statement of the prosecutor (Assignments 1 and 2) and in objected-to state evidence (Assignments 5 and 7) to the beating of the mother immediately preceding the kidnapping of the wife, and to the attempted suicide of the husband. The defendant contends that these involve prohibited references to unrelated other crimes, La.C.Cr.P. art. 770(2), introduced without the pre-trial notice and showing of validity to prove knowledge, intent, or system, La. R.S. 15:445, 446, as required by State v. Prieur, 277 So.2d 126 (La.1973).

However, the beating-kidnapping and the suicide all occurred shortly before (within an hour) or after the murder of the wife. They were independently admissible as part of the res gestae relevant to proof of the murder. See La.R.S. 15:448: “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

Because evidence as to these other incidents was admissible as res gestae, the prosecutor could properly refer to them in his opening statement; for the prohibition is only to reference to other crimes committed by the accused “as to which evidence is not admissible,” La.C.Cr.P. art. 770(2).

Likewise, the Prieur notice is required only as to offenses sought to be introduced to prove knowledge, intent, or system under La.R.S. 15:445, 446. It is not required as a pre-requisite to evidence of other offenses independently admissible upon another basis, such as res gestae, see State v. Prieur, at 277 So.2d 130: “No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.” See also: State v. Mays, 315 So.2d 766 (La.1975); State v. Davis, 311 So.2d 860 (La.1975).

Assignment 3

The defendant took his wife from her mother’s automobile and brought her back home. When the police arrived shortly afterwards, they found the door open and they walked in. They saw the defendant’s wife dead on the floor and the defendant himself lying beside her, both shot and bleeding.

This assignment is based on the contention that the police officers did not first give him the Miranda warnings before asking the husband what had happened. Therefore, it is argued, the statement he made at that time (that he had shot his wife and tried to kill himself) was inadmissible.

However, Miranda warnings are not essential pre-requisites to non-custodial general on-the-scene interrogation to determine facts relating to whether a crime has been committed or by whom, at least absent a showing that the questioning is past such investigatory stage. State v. Anderson, 332 So.2d 452 (La.1976); State v. Ned, 326 So.2d 477 (La.1976); State v. Roach, 322 So.2d 222 (La.1975). We do not find merit in this contention.

Other Assignments

The other assignments do not present arguable merit:

Assignment 4: We do not find the trial judge’s explanation to be an improper comment on the evidence; in any event, no objection was made to it at the time, and the defendant cannot now complain of it. La.C.Cr.P. art. 841.

Assignment 6: We find no objection to the trial court’s overruling an objection to questions of a witness attempting to lay part of the foundation for introduction of a photograph of a vehicle. No prejudice is shown by the questioning, which resulted in the witness’s identification of a car as appearing to be the defendant’s.

Assignment 8: The trial court did not err in sustaining a state objection to defense cross-examination of a state witness as to the names of the men the witness was going out with. (The witness replied, before the objection, “That’s my personal business, I think.”) No reason was offered to show the relevancy of the question to any issue in the case or to any alleged bias or interest of the witness. Questions on personal views or acts of a witness have been considered improper impeachment, when concerning matters too irrelevant to or too remote from the issues of the case at trial. State v. Johnson, 322 So.2d 119 (La. 1975); State v. Darby, 310 So.2d 547 (La. 1975). See also State v. Robinson, 337 So.2d 1168 (La.1976).

Assignment 9: This assignment arose in connection with the state’s interrogation of its police witness who photographed a vehicle parked in front of the accused’s home after the homicide. The witness had earlier indicated that the vehicle belonged to the accused, but the answer was stricken as non-responsive. He then replied “Yes” to a question as to whether he knew the owner of the vehicle. The next question was: “If you had such information, who did you receive it from?” The objection to this question was that it called for hearsay.

The objection to the question was properly overruled. As the answer indicates (The witness stated he had received such information as to ownership of the vehicle “from my radio room at the time”), the purpose of the question was to determine the source of (whatever) information the witness knew of the vehicle’s ownership, not to ascertain the content of any hearsay declaration so learned.

Assignment 10: The motion for a directed verdict was properly overruled. There was substantial evidence from which the jury could find that the defendant had the requisite specific intent to commit the crime charged.

Assignment 11: The trial court refused to give a special charge as to self-defense requested by the defendant. Under La.C. Cr.P. art. 807, the trial court need not give special charges if they are not pertinent to the issues of the case.

We find no error in the trial court’s conclusion that the evidence did not arguably give rise to any plea of self-defense. In fact, the defendant’s argument to the jury (no evidence was introduced on his behalf) was essentially that there was reasonable doubt because a third person might have shot both the defendant husband and the victim wife, Tr. 357-58; not that the defendant might have shot his wife in self-defense.

Decree

Finding no-merit in the assignments of error, we affirm the conviction and sentence.

AFFIRMED.