author: DIXON, Justice. BARHAM, Justice SANDERS, Chief Justice

text:
    STATE of Louisiana v. Wilie MADISON and Frank Chaney, Jr.
    No. 56237.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Harold J. Brouillette, Marksville, for Willie Madison.
    Michael F. Kelly, Marksville, for Frank Chaney, Jr.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., R. H. Luke, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendants, Willie Madison and Frank Chaney, Jr., were indicted on June 17, 1974 along with Joseph Lemons and James Lee for the July 4, 1974 armed robbery of Willie Daigrepont’s store in Avoy-elles Parish. Lemons and Lee pleaded guilty to the charge and were sentenced. Madison and Chaney pleaded not guilty, and were subsequently convicted by a jury on December 14, 1974 of simple robbery; both men were then sentenced to fifty-eight months in the custody of the department of corrections. Both defendants have appealed, relying on two specifications of error.

Specification of Error No. 1

The first alleged error was the failure of the trial judge to direct a verdict of acquittal at the close of the State’s case. Article 778 of the Code of Criminal Procedure stated (until amended by Act 527 of 1975):

“In a jury trial the court may direct a verdict of not guilty of one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“If the court denies a defendant’s motion for a directed verdict or judgment of acquittal at the close of the state’s case, the defendant may offer his evidence in defense.”

This court has held that the trial judge’s ruling on a motion for a directed verdict will be reversed only if we find, as a matter of law, that there is “no evidence” of an essential element of the offense in the record. State v. Ford, 315 So.2d 276 (La.1975); State v. Williams, 311 So.2d 850 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973).

The evidence adduced at the trial shows that the defendants, along with Lemons and Lee, were drinking on the 4th of July in the city of Alexandria. When money to buy more liquor ran low, Lemons suggested he knew a good way to get more money, i. e., to steal it. The others agreed. Thereupon, they set out in a car, owned and driven by defendant Chaney, toward Marksville, along a route Lemons had used a couple of years earlier as a deliveryman. They passed several stores along the route, but did not enter these because cars were parked outside. When they reached the Daigrepont store they first passed it by, then turned around and stopped in the driveway. Lemons gave Lee a .22 caliber pistol with instructions to follow him into the store a few minutes later. While the others remained in the car, Lemons went in and three or four minutes later Lee entered brandishing the pistol. Mr. Daigre-pont thereupon surrendered his wallet, containing about $250.00 in cash. Lemons and Lee ran out and jumped into Chaney’s car, which sped off toward Alexandria. When they arrived in Alexandria the four went to Chaney’s back yard and divided up the money, getting about $65.00 each.

The defendants do not question the fact that an armed robbery occurred at the Dai-grepont store. Their contention is that there was no evidence to convict them of the robbery. R.S. 14:24 states:

“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 principals.”

Madison and Chaney were present when the plan was confected in Alexandria. Both were in the car, which was owned by Chaney, when the actual search for a victim began. When a suitable store was found both Madison and Chaney remained in the car ready to render assistance if needed and did not attempt to leave while the active participants were in the store. Both defendants witnessed Lemons pass the gun to Lee before entering Daigre-pont’s store. The defendants left with Lemons and Lee and sped off toward Alexandria with them. Finally, both Madison and Chaney took their share of the stolen money. Under these circumstances there is, at least, some evidence that both defendants were in fact principals to this crime.

In State v. Williams, 310 So.2d 513, 515 (La.1975), the court held:

“Nevertheless, the trial jury’s commonsense inference that the defendants aided and abetted in the robbery is not mere speculation based upon guilt by as-sodation. We find the inference to be reasonably based upon the actions of the defendants both prior and subsequent to the robbery, as indicating a scheme or plan to commit in concert a robbery if they located a store with a single attendant. If the evidence was so reasonably accepted by the trial jury, it excluded other reasonable hypotheses of innocence.
“Therefore, since the inference was reasonably based upon evidence tending to exclude an innocent explanation for the defendant’s actions at the time of the robbery, we are unable to find a total lack of evidence such as is required before granting a directed motion of acquittal.”

Since there was some evidence that the defendants were principals, the trial judge did not err in denying the motion for a directed verdict. State v. Douglas, supra.

In further support of their motion for a directed verdict, the defendants argue that the very fact that the jury returned a verdict of guilty of simple robbery, when it was not contested that an armed robbery took place, shows that the defendants were in fact not principals to this crime. This argument is without merit. In State v. Peterson, 290 So.2d 307, 311 (La.1974), this court held:

“. . . In Louisiana, when there is evidence to prove the greater offense, it is the jury’s province to determine the existence vel non of lesser culpability and exercise the statutory right to return the manslaughter verdict. See State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). This Court will not look to the evidence to make such a determination.”

Finally, the defendants argue that C.Cr. P. 803 as applied to this case violates the due process clause of the United States Constitution by mandating the trial judge to authorize a jury to return a verdict of guilty of a lesser included offense when there is no rational basis for a conviction of any offense except that charged. This procedure, defendants argue, invites compromise verdicts. In State v. Cooley, 260 La. 768, 257 So.2d 400, 401, 402 (1972), a similar attack was rebutted:

“ ‘Under our peculiar jurisprudence, arising from the fact that on trials for murder the jury may find the prisoner guilty of manslaughter, although the evidence may show him to be guilty of murder, it is necessarily true that a verdict for manslaughter operates as an acquittal of the charge of murder, especially as it is the mandatory duty of the trial judge, whether so requested or not, to charge the jury that they may return a verdict for the lesser crime, regardless of the fact that the evidence may prove the graver offense to have been committed. State v. Cook, 117 La. 114, 41 So. 434; State v. O’Conner, 119 La. 464, 44 So. 265; State v. Ford, 37 La.Ann. 443; State v. Brown, 40 La.Ann. [725], 727, 4 So. 897; State v. Brown, 41 La.Ann. 410, 6 So. 670; State v. Clark, 46 La.Ann. 704, 15 So. 83; State v. Thomas, 50 La.Ann. 148, 23 So. 250; State v. Wright, 104 La. [44], 45, 28 So. 909; State v. Hicks, 113 La. 779, 37 So. 753.’
“If there is sufficient evidence in the record to support a conviction for a greater offense (which includes the one for which the defendant is convicted), the evidence necessarily and automatically will support a conviction of the lesser offense which has been made responsive by legislative action.”

Our law places in the trier of fact the discretion to return a verdict of guilty of certain lesser offenses, less serious than the one charged, in nature and in the penalty. The defendant cannot complain that the jury has mitigated the limits of the punishment to be suffered by the defendant. He has not been prejudiced, even when all the evidence shows guilt of the offense charged (the greater offense), and the jury returns a verdict of guilty of a lesser included offense.

Specification of Error No. 1 is without merit.

Specification of Error No. 2

The second alleged error was the failure of the trial judge to give defendants’ requested charge No. 3 to the jury. The requested charge reads:

“In order to find the defendants guilty of an offense, the jury must find beyond a reasonable doubt that: (a) the defendants" knew about the plan to commit a robbery and (b) either the defendants did an act to help in the commission of the offense or that the defendants hired, asked, or advised those directly concerned in the commission of an offense to commit the offense, all with the specific intent to commit an offense.”

Without discussing the inadequacy of the requested charge, we find that the trial judge’s general charge more than adequately set out the applicable law for the jury. C.Cr.P. 807 states:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

Since the judge’s general charge included every essential of the requested charge, it was not error to refuse to give the requested charge. State v. Lee, 281 So.2d 123 (La.1973).

Specification of Error No. 2 is without merit.

Accordingly, the convictions and sentences are affirmed.

MARCUS, J., concurs.

SANDERS, J., concurs and assigns written reasons.

BARHAM, J., dissents and assigns written reasons.

BARHAM, Justice

(dissenting).

I am of the opinion that when the evidence clearly makes a lesser offense impossible as a responsive verdict, the jury should not be charged that the lesser offense is responsive to the indictment. Moreover, the lesser offense should not be included in the list of responsive verdicts given to the jury. The facts in this case, without dispute, make this defendant, if he is guilty of any robbery, guilty only of armed robbery. There is no dispute that one of the, participants used a dangerous weapon during the occurrence. Simple robbery is not sustained by the facts and cannot be a valid responsive verdict.

I respectfully dissent.

SANDERS, Chief Justice

(concurring).

I agree that the convictions and sentences here should be affirmed. I disagree, however, with the dicta that the jury has a role in assessing the penalty and in mitigating the limits of the punishment. The function of the jury is to determine guilt following the guidelines laid down by the trial judge. Under these guidelines, the guilty verdict may be of the offense charged or of a lesser included offense. It is well established that the jury has no role in determining the penalty or in mitigating punishment. State v. Hill, La., 297 So.2d 660 (1974); State v. Lewis, La., 296 So.2d 824 (1974); State v. Blackwell, La., 298 So.2d 798 (1973); State v. Harris, 258 La. 720, 247 So.2d 847 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); 35 La.L.Rev. 501-502 (1975).

For the reasons assigned, I respectfully concur.


source: Caselaw Access Project

author: TATE, Justice. BARHAM, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Leon CURRY, Appellant.
    No. 56435.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Murphy W. Bell, Director, Fred Blanche, III, Trial Atty., Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Robert H. Hester, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of simple burglary, La.R.S. 14:62, and sentenced to nine years at hard labor. He appeals, arguing two errors as reversible. We find merit rn neither contention.

1.

The defendant contends that it was improper for the prosecutor to read to prospective jurors the provisions of La.R.S. 15:432, especially: “A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence ; such is the 'presumption that the person in unexplained possession of property recently stolen is the thief ”

The sole basis of the argument is that the presumption unconstitutionally compels the defendant to take the stand to rebut the presumption of guilt thereby established. Assignment of Error No. 1. In brief, it is also argued that the presumption also infringes upon the presumption of innocence to which an accused is entitled under the Louisiana Constitution of 1974, Article 1, Section 16. See also Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 53, 55 (1974).

We rejected similar contentions in State v. Womack, 283 So.2d 708 (La.1973). We pointed out that the presumption creates only prima facie evidence of guilt of the theft, but it does not compel the defendant to testify to it any more than does any other circumstantial evidence indicating guilt. See also State v. McQueen, 278 So.2d 114 (La.1973).

Thus, the defendant is free to testify or not, as he sees fit, or to produce evidence other than his own testimony which disproves his guilt of the theft. See also United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). The jury is permitted to, but not required to, find the presumed fact; for in Louisiana the jury or trier of fact has exclusive power to determine the facts as to guilt or innocence, La.C.CR.P. art. 802, and must acquit unless the accused’s guilt is determined beyond a reasonable doubt, La.C.Cr. P. art. 803. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

2.

The defendant also contends that the State’s use of peremptory challenges to exclude two blacks from service on the petit jury was an unconstitutional effort to exclude any black juror from the trial of the defendant, a black. Assignments of Error 2 and 4. We have held that the motive for exercise of a peremptory challenge in such instances is ordinarily not subject to judicial review, State v. Carter, 301 So.2d 612 (La.1974), at least in the absence (as here) of evidence of systematic exclusion of black jurors from the justice system over a period of time, State v. Gray, 285 So.2d 199 (1973).

Decree

We therefore affirm the conviction and sentence.

Affirmed.

BARHAM, J., dissents with reasons.

BARHAM, Justice

(dissenting).

I am constrained to disagree with the majority’s disposition of defendant’s assignment of error No. 1; I believe the trial court erred in permitting the prosecutor to read to prospective jurors the provisions of La.R.S. 15 :432, insofar as they define “legal presumption” and delineate the presumption that a person in unexplained possession of property recently stolen is the thief. The majority states that the jury is permitted, but not required to, find the presumed fact. In my opinion, this statement by the majority ignores the plain meaning of the first sentence of La.R.S. 15:432, which states unequivocally that:

“A legal presumption relieves him in whose favor it exists from the necessity of any proof * * (Emphasis mine.)

Since a juror is sworn to accept the law as given to him by the court, a charge on the basis of La.R.S. 15:432 would, in my opinion, mandate that the juror relieve the State of the burden of proving a defendant a thief in the face of a showing that the defendant possessed recently stolen property. In my opinion, the statutory definition of presumption, and the presumptions enumerated in La.R.S. 15:432, dictate certain jury findings which violate a defendant’s constitutional rights.

In his treatise on evidence, McCormick states:

“ * * * Presumptions upheld in cases such as United States v. Gainey and Turner v. United States [both cases cited by the majority] had only the effect of a permissible inference. The jury was told that it could but was not required to find the existence of the presumed fact. In the Gainey case, the Court particularly emphasized the permissive nature of the presumption. Both the right of the defendant to trial by jury and his right to have the prosecution prove each element of the offense beyond a reasonable doubt are constitutionally protected. A rule that shifted the burden of producing evidence with regard to an element of the offense so as to require the jury to find against the defendant in the absence of rebutting evidence or that required that the defendant persuade the jury of the nonexistence of such an element would violate both these rights. * * * ” McCormick, Evidence, § 346 (Clearly ed. 1972).

In the instant case, and under our statutory law as it now reads, the jurors have no such option. They must find the fact established by the application of the legal presumption, no other proof being necessary.

Since this Court last approved the presumption we here consider in State v. Womack, 283 So.2d 708 (La.1973), and State v. McQueen, 278 So.2d 114 (La.1973), the people of the State of Louisiana have adopted a new Constitution which for the first time raises to the dignity of an articulated constitutional right the presumption of innocence. La.Const. Art. I, § 16. This presumption of innocence, so fundamental to our system of criminal justice, has heretofore been derived by inference from the United States Constitution and earlier Louisiana constitutions. Never before, however, have the people of Louisiana seen fit to dignify this fundamental right by explicit inclusion in the highest law of the state. This articulated reaffirmation of the right to be presumed innocent until proven guilty beyond a reasonable doubt is very significant and clearly indicates to me the intent of the people of Louisiana to have this presumption override the statutory presumptions which effectively emasculate it.

In dissents filed to the Court’s opinions in the Gainey and Turner decisions, Mr. Justice Black expressed the view that the statutory inferences involved in those cases deprived the defendants of their constitutional rights to a trial by jury, to due process of law and to the Fifth Amendment right not to be compelled to be a witness against oneself. Mr. Justice Black further expressed his view that the effect of the use of the presumptions approved in those cases deprived the defendants of the benefit of the presumption of innocence. In this case, more than in those, the application of the presumption read to the prospective jurors would have those effects, in my opinion. The specific inclusion of the presumption of innocence in our new state Constitution, which presumption is effectively violated by the application of the presumption read to the prospective jurors in this case, clearly exhibits the error of which this defendant complains.

I respectfully dissent.


author: SUMMERS, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Earl C. MUSE.
    No. 56129.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Dissenting Opinion Oct. 14, 1975.
    Rehearing Denied Oct. 31, 1975.
    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 Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In a bill of information Earl Muse was charged with committing a battery with a pistol upon Jerome Hamilton. He was found guilty and sentenced to serve four years at hard labor with credit for time served.

About six o’clock on the afternoon of April 12, 1975, Jerome Hamilton was watching a television news broadcast in a barber shop at the corner of Washington and Magnolia Streets in the city of New Orleans. Suddenly he heard a number of pistol shots being fired outside. As he walked to the door to investigate, he observed a Thunderbird automobile zigzagging down the street. Two people were seen firing pistols at the Thunderbird from across the street. Hamilton was then struck by a bullet below the eye and fell to the floor. He said he did not know either of the individuals who were firing at the Thunderbird, and knew no reason why the accused would shoot him.

Alfred Deleone, a state witness, testified that he and the defendant Earl Muse had a quarrel shortly before six o’clock on the afternoon of April 12. When he later drove past the corner of Washington and Magnolia Streets in his Thunderbird, Earl Muse fired six or seven shots at him with a pistol. At the time Muse was accompanied by another known to Deleone as “Nuck”. Deleone stopped his car down the street and ran into his house for a pistol, while his assailants fled into Willow Street. As Deleone pursued them the police arrived at the scene, and Deleone in the ensuing confusion, attempted to dispose of the pistol he was carrying by giving it to a girl friend nearby. Deleone and Muse were arrested shortly thereafter.

At the trial, while Deleone was under cross-examination by the defense, the following colloquy occurred between Dele-one and defense counsel.

“Q. How long have you known Jerome? (Jerome Hamilton the victim of the bullet wound.)
A. About twenty years.
Q. You see him a lot?
A. On occasion. I don’t see him every day.
Q. Do you ever have occasion to talk to people in the community about Jerome ? About his character ?
A. No.
Q. You never talked to anybody about him?
A. No.
Q. Do you know Jerome’s general reputation in the community?
BY MR. CHEN: (Assistant District Attorney) Objection, Your Honor.
BY THE COURT: I’ll have to sustain the State’s objection.
BY MR. VIOSCA (Defense Counsel) To which ruling we’d reserve a bill of exception.”

The trial judge assigns as reason for his ruling that Hamilton’s general reputation in the neighborhood was strictly irrelevant and immaterial to the issue before the Court, and more particularly so since he was an innocent bystander. Alternatively, he asserts sustaining the State’s objection was not prejudicial to the defense.

On this appeal defense counsel argues that it was error for the trial judge to restrict his effort on cross-examination to question the witness Deleone as to the character of Hamilton, a principal State witness; and that Hamilton’s credibility was at issue and his character was being inquired into for the purpose of impeachment. To support this contention the defense relies upon Section 479 of Title 15 of the Revised Statutes which provides that “Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.”

From these facts it was entirely conceivable that Jerome Hamilton saw the person who fired the shot which caused his wound. Conceivably it was the person accompanying the defendant Muse at the time of the shooting. All of which is of course speculation. It may have been that Hamilton desired to see Muse’s companion acquitted, and would not contradict Deleone’s testimony accusing Muse. An attack upon Hamilton’s credibility may, perhaps, have mitigated the evidence pointing to the guilt of Muse. All of which is, of course, relative at this point. In any event, the defense was not permitted to cross-examine the State’s witness to show Hamilton’s bad character, or its effect upon his credibility, whatever the object of the cross-examination may have been.

In our view the question was proper and should have been allowed.

The proper question to be put to a witness for the purpose of impeaching the general character of another witness, as approved by this Court in State v. Christian, 44 La.Ann. 950, 11 So. 589 (1892), is whether he would believe him upon his oath. The regular mode is to inquire whether they have the means of knowing the former witness’ general character, and whether, from such knowledge, they would believe him on his oath. The proper inquiry is, what is his general character for truth in the place where he resides? and whether, from the witness’ knowledge of his general character, he would believe him under oath.

As the Court observed in Paradise v. Insurance Co., 6 La.Ann. 596 (1851):

“It is not to be supposed that jurymen are personally acquainted with the character of all the witnesses that come before them, and, when they are called to find out the truth by means of the testimony presented to them, it is indispensable for the purposes of truth, that they should know how far portions of that testimony are entitled to credence. The inconvenience suggested is a serious one, but the exclusion of necessary information from the jury would be a much greater one.”

Proof of character, therefore, whether good or bad, depends upon the general reputation that a man has among his neighbors, and it is undoubtedly a legitimate inquiry wherever the credibility of a witness is sought to be brought into question. State v. Oliver, 247 La. 729, 174 So.2d 509 (1965).

Having decided that the defense question was proper and denying this mode of questioning by the trial judge was error, the question is then what is the import of this error upon the trial.

“The accused in every instance shall have the right to be confronted with the witnesses against him . . . .” This clause of Section 9 of Article I of the Louisiana Constitution of 1921 is implemented by Sections 273 and 280 of Title 15 of the Revised Statutes providing, respectively, that

“The accused shall have the right to be confronted with the witnesses against him and the depositions of witnesses shall not be evidence either for or against him except as provided by law.” La.R.S. 15:273.
“When a witness had been intentionally sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case.” La.R.S. 15:280.

The principle is recognized in Article I, Section 16 of the Constitution of 1974 in this clause: “An accused is entitled to confront and and cross-examine the witnesses against him . . . .”

As we said in State v. Giordano, 259 La. 155, 249 So.2d 558 (1971);

“The right of confrontation occupies the status of a paramount and fundamental right indispensable to a fair trial. It is a substantial, substantive and valuable right which assures the accused that he shall have the opportunity to be confronted by the witnesses against him and this includes not only the right to attend the trial and hear the witnesses but also the right to cross-examine them at the trial. It is a constitutional right, not a mere privilege.”

Our cases have steadfastly recognized the importance of the right of cross-examination. State v. Williams, 250 La. 64, 193 So.2d 787 (1967); State v. Elias, 229 La. 929, 87 So.2d 132 (1956); State v. Angelle, 217 La. 852, 47 So.2d 664 (1950); State v. Nugent, 116 La. 99, 40 So. 581 (1906); State v. McCoy, 109 La. 682, 33 So. 730 (1903) ; Dubose v. Bosworth, Gunby’s Dec. 41 (La.App.1885). See also Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

Francis L. Wellman, the distinguished trial lawyer of the New York bar, described the importance of cross-examination in these words:

“If all witnesses had the honesty and intelligence to come forward and scrupulously follow the letter as well as the spirit of the oath, ‘to tell the truth, the whole truth, and nothing but the truth,’ and if all advocates on either side had the necessary experience, combined with honesty and intelligence, and were similarly sworn -to develop the whole truth and nothing but the truth, of course there would be no occasion for cross-examination, and the occupation of the cross-examiner would be gone. But as yet no substitute has ever been found for cross-examination as a means of separating truth from falsehood, and of reducing exaggerated statements to their true dimensions.” Wellman, The Art of Cross-Examination, p. 5 (4th ed. 1936).

Because the right of confrontation is denied by an improper restriction of cross-examination, the error is substantive and a denial of a constitutional right. As such the error nullifies the verdict and requires a new trial.

We cannot subscribe to the trial judge’s opinion that the error was harmless for we do not know what defense counsel may have elicited from the witness, nor its effect upon the jury’s determination of the defendant’s guilt.

For the reason assigned, the conviction and sentence are set aside and the case is remanded for a new trial.

SANDERS, C. J., dissents and assigns written reasons.

SANDERS, Chief Justice

(dissenting).

The State charged Earl Muse with shooting Jerome Hamilton. The record reflects that Hamilton was in a New Orleans barbershop, when he heard shooting on the street. When he walked to the door, he observed a Thunderbird automobile driving down the street. Two individuals, unknown to him, were firing at the automobile. One of the shots struck him below the eye, and he fell. He did not see who shot him.

Hamilton’s testimony at the trial was restricted to the above facts. It was a report of an innocent bystander being struck by a stray bullet.

While Deleone, another State witness, was under cross-examination, the defense attempted to attack Hamilton’s reputation, apparently for purposes of impeachment.

The witness testified that he had known Hamilton for twenty years, that he saw him occasionally, but that he had never heard his character discussed. Defense counsel then asked the following question: “Do you know Jerome’s general reputation in the community?” The State objected to the question, and the trial judge sustained the objection.

Although the ruling is not free from difficulty, I am inclined to believe it was correct for two reasons.

Initially, I note that the question does not specify what kind of general reputation is sought. In Louisiana, the reputation testimony may relate to the witness’s general reputation for truth or his general moral character. LSA-R.S. 15:490; State v. Guy, 106 La. 8, 30 So. 268 (1901); State v. Parker, 7 La.Ann. 83 (1892). In my opinion, the question is deficient in failing to specify whether the reputation for truth, general moral character, or both is sought. In jurisdictions, such as Louisiana, where different types of reputation may be tested, it is improper to ask merely if the witness knows the “general reputation.” See State v. Tyler, 220 Mo.App. 317, 286 S.W. 408 (1926); 98 C.J.S. Witnesses § 524, p. 451.

Secondly, it is well established that the proof of reputation allowed is not individual opinion, rumor, or impressions gained from personal contact with the witness to be impeached. It is limited to general reputation or report. LSA — R.S. 15:491; State v. Corbin, La., 285 So.2d 234 (1973). Here, the witness had indicated that he had never heard the reputation discussed. Hence, the judge had the right to assume that the question was directed to an improper form of reputation, such as the witness’s private opinion.

It is well established that after an impeaching witness has testified that he has not heard the witness’s reputation discussed, he can go no further in his testimony. See State v. Warren, 138 La. 361, 70 So. 326 (1915).

Assuming arguendo that the trial judge erred in sustaining the objection, in my opinion it was harmless error. The witness sought to be impeached was no more than an innocent bystander, struck by a stray bullet. Identification of the defendant depended upon the testimony of other persons. The evidence identifying the defendant as the gunman is overwhelming.

Article 921 of the Louisiana Code of Criminal Procedure provides:

“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”

For the reasons assigned, I respectfully dissent.


author: DIXON, Justice. MARCUS, Justice SANDERS, Chief Justice

text:
    STATE of Louisiana v. COUNTDOWN, INC.
    No. 55878.
    Supreme Court of Louisiana.
    July 25, 1975.

      Edward M. Baldwin, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., John E. Jackson, Jr., Robert E. Redmann, Asst. Attys. Gen., for plaintiff-applicant.
   DIXON, Justice.

The attorney general brought this action by the State of Louisiana to annul the charter of Countdown, Inc. and to enjoin its operation. From adverse judgments dismissing plaintiff’s suit in the district court and the Court of Appeal (State of Louisiana v. Countdown, Inc., La.App., 305 So.2d 634), the State applied for writs to this court, alleging two errors:

“I. It was error to find that the business activity of Countdown is not an activity prohibited to corporations by Louisiana law.
“II. It was error to find that the activity of Countdown is not an off-track betting operation prohibited by Louisiana law.”

The first specification of error is based on the prohibition of C.C. 441:

“A corporation can not be administrator, guardian or testamentary executor, nor fulfill any other office of personal trust. A corporation can not be imprisoned, for its existence being ideal, nobody can arrest or confine it.”

The second specification of error is based on the contention that Countdown, Inc. violates R.S. 4:147 and 149, which prohibit wagering on horse races except by a licensed parimutuel arrangement conducted in the “race meeting grounds” or the “enclosure of the licensee.”

Suit was filed February 11, 1974; trial was on March 15, 1974. The ledger sheet for Countdown introduced in evidence showed operations were conducted on twelve days from November 28, 1973 through January 24, 1974. The gross income totaled $611.00, for which the “messenger fee” was $61.10, derived from an estimated three hundred transactions.

Another exhibit consisted of a collection of forms — an original and two carbon copies in each set. To each set of forms a Fair Grounds betting receipt is stapled. That receipt and the form show the date, the race, the number of the horse and the amount of the bet to win, place or show. The forms were kept for fourteen days; they contained printed “Rules and Regulations” on the reverse side of each sheet.

In the event of a winner, the testimony is that the bettor, on production of the proper receipt, would be given his winning ticket to cash at the track. A bettor who wanted Countdown to retrieve his winnings from the track could sign another form authorizing that transaction. There was only one winner in the course of the operation — an undercover policewoman.

Three police agents testified about the operation of Countdown. There is no dispute about the evidence. The only evidence offered shows that Countdown operated a messenger service only, and did not wager. It took money from customers, transported it to the track, returned with betting tickets obtained at the track, and surrendered the tickets to customers on demand.

Such an operation cannot be characterized as an “office of personal trust” and the courts below were correct in holding C.C. 441 inapplicable.

Nor is there any merit to the State’s contention that Countdown’s operation constitutes betting at an off-track site prohibited by R.S. 4:149 and 171. Countdown did not bet or wager. It accepted money, carried to the track, placed the bet at pari-mutuel windows and returned the betting ticket to its office, to be retrieved by the bettor. It takes two to wager, and until Countdown reached the track with the bettor’s money and bought the ticket at the pari-mutuel window, no bet was made.

For these reasons, the judgments of the Court of Appeal and the district court are affirmed.

SANDERS, C. J., and MARCUS, J., dissent and assign written reasons.

SUMMERS, J., dissents for the reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

I disagree with the majority opinion. In my view, the operation of Countdown, Inc., violates La.R.S. 4:149 and La.R.S. 4:171. La.R.S. 4:149 provides that the State Racing Commission shall make rules governing, permitting, and regulating the wagering on horse races under the form of mu-tuel wagering by patrons, known as parimutuel wagering. This statute further provides that:

Only those persons receiving a license from the commission may conduct this type of wagering, and shall restrict this form of wagering to a space within the race meeting grounds. All other forms of wagering on the result of horse races are illegal, and all wagering on horse races outside the enclosure where horse races have been licensed by the commission is illegal

La.R.S. 4:149 (1950), as amended, La.Acts 1968, No. 554, § 1 (emphasis added).

La.R.S. 4:171 provides in pertinent part:

No person shall directly or indirectly hold any horse race meeting with mutuel pool or pools making wagering on the results, without having first procured a license. No person shall wager upon the results of a horse race, except in the pari-mutuel or mutuel method of wagering when the same is conducted by a licensee and upon the grounds or enclosure of the licensee.

La.R.S. 4:171 (1950), as amended, La.Acts 1968, No. 554, § 1 (emphasis added).

In my view, the operation of Countdown, Inc., constitutes a form of wagering on the results of a horse race outside the enclosure where horse races have been licensed by the commission. Hence, its operation violates the above statutes and should be enjoined. Accordingly, I respectfully dissent.

SANDERS, Chief Justice

(dissenting).

For 'my dissent, I adopt the reasons assigned by Mr. Justice Marcus.

*

      . COUNTOWN, INC.
      Countdown, Inc., is a corporation organized and existing by virtue of the laws of the State of Louisiana.
      Countdown, Inc., provides agents to place bets or wagers through the parimutuel wagering system on the result of horse races conducted on the grounds of any enclosed race track which is licensed by the Louisiana State Racing Commission to conduct a race meeting or meetings.
      Any money paid to Countdown, Inc., does not constitute a bet or wager but only as a grant of authority to Countdown, Inc,, its agents, employees, or servants, to place such money in the parimutuel pool of any enclosed race track which is licensed by the Louisiana State Racing Commission to conduct a race meeting or meetings.
      Countdown, Inc., in consideration for providing the messenger service stated above, charges a fee of ten percent (10%) of the amount to be placed in the parimutuel pool of an enclosed race track which is licensed by the Louisiana State Racing Commission to conduct a race meeting or meetings.
      (1) The ten percent (10%) messenger service fee shall be collected irrespective of the official result of any horse race or races on which a patron wagers or bets.
      (2) Should any such patron win, agents of Countdown, Inc., shall cash in such winning ticket at a cashier’s window on the grounds of any such authorized race track and any such patron shall be paid the full sum of any such winnings in exchange for his receipt; except where Social Security Number is required to cash in such winning ticket, in which event agents of Countdown, Inc., shall deliver such winning ticket to patron in exchange for his receipt.
      (3)Should any such patron lose, agents of Countdown, Inc., shall, on demand of any such patron, deliver any and all losing tickets to such patron in exchange for his receipt.
      RULES AND REGULATIONS
      (1) SCRATCHES.
      (A) Any horse which is scratched or declared from any race which is conducted on the grounds of an authorized race track after twelve o’clock (12:00) noon on the day when such horse race or races is scheduled to run shall be deemed a “late scratch.” With respect to a “late scratch,” the messenger service fee of ten percent (10%) of the amount to be placed in the parimutuel pool of any such authorized race track shall be non-refundable; the amount of the wager or bet shall, however, be refunded to any such patron in exchange for his receipt.
      (B) Scratch or declaration of a part of an entry, if scratched or declared after twelve o’clock (12 :00) noon on the day when such horse race or races is scheduled to run, shall not revoke the agency of any duly authorized agent, employee, servant, or representative of Countdown, Inc., to place the full amount of the wager or bet on the remaining part of any such entry in the parimutuel pool of an authorized race track.
      (2) JOCKEY CHANGES.
      No change or transfer of jockey or jockies, if such change or transfer is made after twelve o’clock (12:00) noon on the day when any such horse race or races is scheduled to run, shall revoke the agency of any duly authorized agent, employee, servant or representative of Countdown, Inc., to place the full amount of the wager or bet on the horse selected by the patron.
      (3) EQUIPMENT CHANGES.
      No change of equipment (e. g., adding blinkers to equipment or discontinuing the use of them, etc.), if such change is made after twelve o’clock (12:00) noon on the day when any such horse race or races is scheduled to run shall revoke the agency of any duly authorized agent, employee, servant, or representative of Countdown, Inc., to place the full amount of the wager or bet on the horse selected by the patron.
      (4) WEATHER CHANGES.
      No change of weather or change of the condition of the track (e. g., fast, sloppy, good, slow, muddy) shall revoke the agency of any duly authorized agent, employee, servant, or representative of Countdown, Inc., to place the full amount of the wager or bet on the horse selected by the patron.
      (5) TIME WITHIN WHICH TO COLLECT WINNINGS AND/OR LOSING TICKETS.
      Any patron shall have fourteen days within which to exchange his receipt for either the full amount of his winnings or the losing tickets on the horse or horses which he selected or to claim his refund as provided for in Rule (1) (A) and Rule (6).
      (6) DISCLAIMER OP WARRANTY.
      For causes over which Countdown, Inc., its agent, employees, servants, or representatives may have no control (e. g., traffic jams, armed robberies, etc.), Countdown, Inc., its agents, employees, servants, or representatives cannot and do not guarantee that the amount to be placed through the parimutuel pool of an authorized race track on the results of horse races conducted on the grounds of any such authorized race track will be placed in the parimutuel pool and in such event the patron shall be entitled to a refund of the total amount of his wager as well as the ten percent (10%) messenger service fee within the time period set out in Rule (5).

      . The act was later amended in 1974. La. Acts 1974, No. 626, § 1.


author: OTT, Judge.

text:
    Succession of CARTER.
    No. 2921.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21, 1947.
    Writ of Certiorari Denied Feb. 16, 1948.
    Brumfield, Herbert & Rush, of Baton Rouge, for appellant.
    Moise Thibodeaux, of Baton Rouge, for appellee.
   OTT, Judge.

Gideon T. Carter, a colored man, died in June, 1942. He left a widow, Virginia Jones Carter, from whom he had been living separate and apart almost ever since his marriage to her in 1924. He also left seven grandchildren, issue of a predeceased daughter of the deceased by a previous marriage, and one son, issue of his marriage to the present surviving widow.

In July, 1942, the surviving widow filed a petition asking to be appointed adminis-tratrix, and an inventory was made showing the total value of the estate to be $1,555.50. Rebecca Robinson Johnson, a granddaughter of the deceased, filed a petition in the succession proceedings, alleging that no administration was necessary, but if an administration was found to be necessary, that she was entitled to be appointed to this position in preference to the widow. In June, 1943, a judgment was rendered declaring an administration necessary and appointing Rebecca Robinson Johnson administratrix. She qualified in due course.

In May, 1944, the widow, 'Virginia Jones Carter, filed a petition in the proceedings, alleging that Rebecca Robinson had been appointed administratrix; that at the time of the death of her deceased husband she was receiving and had been awarded by order of court for her support a pension in the sum of $16 per month; that she is at the present time in necessitous circumstances and has no means of support, except a small allowance from her son in the army; that she has not received since the death of her husband the pension allowed her by the court, and that she is entitled to receive out of the succession a monthly allowance for her support in accordance with Act No. 113 of 1926, amending Civ.Code, art. 2382; that such allowance should be based on the apparent amount of the marital fourth at five per cent per annum interést, and should the marital portion or the $1,000 widow’s homestead as finally fixed, not yield the revenue equal to the allowance as fixed by the court, the widow shall be charged with, and there shall be deducted from the marital portion, or the $1,000 homestead, the amount of such deficiency. She prayed for the citation of the administratrix and for judgment fixing the allowance at the amount she was receiving before her husband’s death, and for general and equitable relief.

An exception of no cause and no right ■of action was filed to this petition by the administratrix, but before any action was taken on the exception, Rebecca Robinson Johnson died, and her brother, George Robinson, filed a petition to be appointed administrator. The widow filed an opposition to this petition and alleged that as the surviving spouse of the deceased she is a creditor of the succession for her marital portion under Article 2382 of the Civil Code and for a widow’s homestead under Article 3252 of the Civil Code whichever the court may decide to be applicable as both articles are in pari materia. In due course a judgment was rendered appointing George Robinson administrator and he qualified as such.

In Juné, 1945, the widow filed a petition against this administrator claiming an allowance and used almost the identical language as was used in her previous petition against the deceased administratrix. To this second petition, the administrator Robinson filed an exception -of no cause or right of action, which exception was referred to the merits. An answer was' filed by the administrator, making a general denial. A judgment was rendered in February, 1946, overruling the exception, and recognizing Virginia. Jones Carter as surviving spouse in necessitous circumstances and entitling her as such to the usufruct of one-fourth of the estate of the deceased. The administrator has appealed.

Exception Of No Cause Or Right Of Action

This exception is based on the ground that the petition does not allege that the widow was in necessitous circumstances at the time of her husband’s death; that there is no law permitting the payment of alimony fixed by order of court to be continued or paid out of his succession after the man dies; that the petition does not show any facts by which it could be determined whether or not the deceased died rich so as to entitle the widow to the marital portion.

There is considerable merit in the exception. However, if we take into consideration all the pleadings filed by the widow in this succession, it can be reasonably inferred that the relief she seeks is an allowance under Article 2382 of the Civil Code, as amended by Act No. 1,13 of 1926, to be paid under the provisions of that article as amended; or, she is asking for the widow’s homestead or privilege as provided for in Article 3252 of the Civil Code. This conclusion can be drawn from the pleadings. which have been referred to'above. As the trial judge'states, the pleadings are very confusing, but under our liberal system of pleading, the widow was entitled to show the facts as they existed at the time of her husband’s death. The most that could be done with the exception would be to require the petition to be amended so as to show the necessary facts. The widow could have proceeded by rule to have the allowance fixed under Act No. 113 of 1926, and it is obvious from the language used in permitting the surviving spouse to ask for a periodic allowance out of the succession during its administration that no formal petition is required to bring the claim before the court. See Barrett v. Pierson, 163 La. 541, 112 So. 410.

Merits

The condition of the widow and the value of the succession at the time of the death of the deceased must control in determining whether or not she was in necessitous circumstances and whether or not the husband died rich within the contemplation of Article 2382 of the Civil Code. The value of the property of the deceased as shown by the inventory taken shortly after his death is fixed at the sum of $1,555.50. When her husband died, the widow had a small lot of ground for which she paid the sum of $56.50, and on which she subsequently built a small house. She was making $6 per week and her son was working at Dalton’s making about $7 per week, most of which he gave to his mother for her support.

Under this state of facts it could hardly be said that Carter died rich as compared to the station in life and income of his widow. She was not in any more necessitous circumstances at the time of his death than he was. It is true that he was paying her alimony in the sum of $16 per month under an order of court rendered in 1925 when her child was very young. We doubt if the court would have compelled him to pay this alimony had the matter been brought up just before Carter died. At that time the child was no longer a care on the mother, but was making his own way and assisting in the support of his mother. There is no law which requires that the succession of a deceased husband can be forced to continue payments of alimony which the deceased was paying at the time of his death.

The case most favorable to the widow’s position is that of Moore v. Succession of Moore, La.App., 7 So.2d 716, where the court allowed a husband in necessitous circumstances to take from the succession of his deceased wife the one-fourth, the wife’s succession having a net value of only $2,000. However, in that case the surviving spouse was 68 years old and had no property and practically no means of support, and there were no children left by the deceased.

There was an effort made to show that the property of the deceased husband was worth several thousand dollars. However, these valuations were based on prices existing at the time tile case was tried in 1946, and not on values in 1942 when Carter died. If 1946 prices were to be considered, the widow herself testified that her property was then worth two or three thousand dollars, she having built a house on her lot since the death of Carter in 1942.

There is also evidence in the record to show that the claimant was living in the house with another man and was taking care of his children for which she was receiving three dollars per week. The deceased Carter was a preacher among his race, and the evidence indicates that he did not get over $25 to $30 per month for his services. He had no greater financial income before his death than she did, and soon after his death she began to receive $37 per month from her son who was in the Army for over three years.

From the facts in the case we are unable to see how the claimant is jusified in claiming the marital portion, nor do we see how she is entitled to receive the one thousand dollars allowed to a widow in necessitous circumstances under the provisions of Article 3252 of the Civil Code.

For the reasons assigned, the judgment appealed from is hereby reversed and set aside, and the demands of Virginia Jones Carter are rejected and her claim is dismissed at her costs in both courts.


author: DORE, Judge.

text:
    BREELAND et al. v. KELLY et al.
    No. 2935.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Ott & Watts, of Franklinton, for appellants.
    Stafford & Pitts, of Alexandria, for ap-pellees.
   DORE, Judge.

This is a suit brought by the parents of Cecil Dewitt Breeland for the alleged wrongful death resulting from an automobile accident on the Franklinton-Tyler-town Highway in the vicinity of Clifton, Louisiana, at approximately 7:30 P.M., on September 1, 1945. They allege that the accident was caused solely by the negligence of C. L. King, who was operating an International truck owned by E. L. Kelly, and they sue the said E. L. Kelly and his insurer, Metropolitan Casualty Insurance Company of New York, praying for damages for the wrongful death of their son, in the total sum of $30,000.

After due hearing of the case, the trial judge rendered judgment in favor of the defendants, dismissing the suit at the costs of plaintiffs. From this judgment the plaintiffs have appealed.

Some of the facts in the case are clearly shown by the evidence and are undisputed. On other points, as is usual in these damage suits, there is some contradictory testimony.

It is admitted the C. L. King was operating an International truck belonging to defendant E. L. Kelly at the time of the accident and was in the course and scope of his employment. He left Alexandria, Louisiana, about 8:00 A.M. with a load of cattle and hogs, which he hauled to Tylertown, Mississippi, a distance of some 368 miles, and arrived at Tylertown at about 4:30 or 5:00 P.M. He then unloaded, had something to eat, and on his return trip had reached the point of the accident with his empty truck and trailer at about 7:30 or 7:45 P.M. daylight saving time.

It is shown by the testimony of Mrs. Eva Mae Stogner that on the day of the accident she met Purvis Thomas in Tyler-town, Mississippi, and that he drove her in his Ford coupe from Tylertown, Mississippi, to Warnerton, Louisiana, a distance of about 15 or 18 miles, and that they arrived there at about 6:00 P.M., and at Warner’s store, in Warnerton, they met Cecil Dewitt Breeland, who joined them. In her testimony she admits that her boy friend, Thomas, and young Breeland had a drink while there at Warner’s store, and that before leaving Thomas bought a half pint bottle of brandy. It was brought out in the testimony that she had told an insurance adjuster and a State policeman after the accident that Breeland and Thomas had had a couple of drinks, and the trial judge reached the conclusion, as shown by his opinion, that they had had at least a couple of drinks while at Warner’s store in Warnerton, La. Mrs. Stog-ner testified further that they saw Hezzie Keen and her mother at Warner’s store and that Hezzie Keen was driving a pickup truck, accompanied by her mother, and that while they were not together they met at Warner’s store and that after leaving they were followed shortly after-wards by Hezzie Keen, and that Keen thereafter passed them and that when they arrived near the scene of the accident, the cattle truck and trailer of the defendant Kelly, being driven by C. L. King, was proceeding- south in the same direction as themselves, followed by the Keen pickup truck, who, in turn, was followed by them; that the cattle truck was driving in the middle of the road, approximately a quarter over the center line, and that Keen blew his horn and passed the truck, and that thereupon Thomas, in the Ford Coupe, accompanied by her in the center and young Breeland on the right, blew his horn and proceeded to pass the truck, having to get on the left shoulder due to the fact that the truck would not pull over to his right, and that just as they were about clear, the truck suddenly turned to its left and struck the right rear fender of the Ford coupe; and that as a result Thomas lost control of his car and went into the east ditch, and in attempting to resume control and to bring the car back on the highway, the coupe turned over a couple of times, throwing her,and young Breeland and Thomas out of the car, resulting in the death of Breeland, who was killed instantly. Her testimony is to the effect that Thomas was driving at the rate of about 25 miles per hour at the time of the accident, which occurred some four miles south of Warnerton, and one mile north o-f Clifton. Testimony, was introduced to show that she admitted shortly after the accident that the cause of the accident was the fact that they were driving too fast; but in her direct testimony she vigorously denied having made any such statement in the same manner that she denied having made the statement that Thomas and young Breeland had had a “couple” of- drinks in Warnerton.

Aside from Mrs. Stogner, the only other eye witnesses to the actual accident were her friend Thomas, and C. L. King, the driver of the cattle truck, John D. Sims, who was riding with the C. L. King driver in the cattle truck cab, and Enochs Bick-ham, in - front of whose place the accident occurred. Purvis Thomas was not called as a witness.

C. L. King testified that he was driving his truck on his right hand side of the road at about 35 miles per hour when he was passed by the pick-up truck being driven by Hezzie Keen; that said pick-up truck was making approximately 60 or 65 miles per hour; that almost at the same time the Ford coupe passed him, and in doing so slightly scraped his left front fender and that the Ford coupe, being driven at a rate of speed of about 60 miles per hour, thereupon swerved into the ditch on the left or east side of the highway and thereafter went from left to right, and then turned over some three times and came to rest at the mail box of Mr. Bickham, some 50 yards away from his truck; that upon being side-swiped by the Ford coupe he at once applied his brakes by pulling an emergency lever and stopped at a distance of 5 or 6 feet. King testifies further that the application of the emergency brake caused his truck to leave tire marks and that he examined those tire marks, which showed that his right wheels were on the right shoulder of the highway. Fie states further that the impact on his truck was very slight, causing a mere scratch on his left front fender.

John D. Sims, a colored man who was riding with C. L. King, testified to the same effect as King.

Mr. Enoch Bickham, who obviously has rio interest in the case, testified that he witnessed the accident from his place, some 200 feet from the road and .that he saw the Ford coupe turn over three times before coming to rest at his mail box, which was torn down by the impact. He, too, estimates the speed of the Ford coupe at some 60 miles per hour.

After the accident, C. L. King discovered that young Breeland was dead, and that the other two occupants of the Ford coupe were probably badly hurt, and he notified the State police about the accident and some 45 minutes later a State policeman, to-wit, A. O. Passman, came over to investigate the accident.

Passman’s testimony shows that the black top road at the point of the accident is 20 feet wide, with shoulders of part dirt and gravel, approximately 3 or 4 feet wide; that from the physical facts the Ford coupe had traveled some 45 to 50 yards before coming to rest as shown by the cut up ground in the ditch where it first went out of control, and other marks along- the way. He is one of the witnesses who stated that the remark was made by Mrs. Stogner to the effect that the accident was caused by fast driving. Officer Passman also testified that he found in the Thomas car a half pint bottle of peach brandy which was empty.

It might be added that on rebuttal, Hezzie Keen and his friend, Mrs. Lula Stogner, mother of Eva Mae Stogner, vigorously denied that either they or the occupants of the Ford coupe were driving fast and stated that the real cause of the accident was the negligence of the driver of the cattle truck in refusing to allow enough room to be passed properly.

It seems obvious from the testimony in this case that the plaintiff has failed to’ establish any negligence on the part of C. L. King. Such claim of negligence is based entirely on the testimony of Hezzie Keen and Mrs. Lula Stogner, and Mrs. Eva Mae Stogner, and that testimony is not only vigorously contradicted by C. L. King and John Sims and Enoch Bickham, but is discredited by the physical facts as brought out by officer Passman, as well as by King and Mr. Bickham. Surely, if the Ford coupe had been travelling at the ■rate of 25 miles per hour, it would not have turned over three times, and gone a distance of some 34 yards coming to rest on a mail box and knocked said mail box down; nor could it have passed the cattle truck which was going 35 miles per hour. Moreover, if the truck had run into the Ford coupe, as alleged, the damage to the truck’s front fender would have been more than a slight scratch on the side thereof. Moreover, it seems clear from the evidence that Purvis Thomas and his friend, young Breeland had at least two drinks at Warner’s store in Warnerton, and that during the next four miles they consumed the contents of a half pint of peach brandy. The amount of intoxicants taken may not have been enough to render them intoxicated, but certainly was sufficient to give them the feeling of exhilaration and recklessness which was demonstrated by excessive fast driving and which was the actual proximate cause of this unfortunate accident in our opinion.

Suffice it to say that we do not find any manifest error in the finding of fact of the trial judge to the effect that no negligence on the part of King, the driver of the cattle truck, has been shown, and to the further effect that the sole cause of the accident was the reckless driving of Purvis Thomas, the driver of the Ford coupe, aided and abetted by the other occupants of his car.

For these reasons, the judgment appealed from is affirmed.


author: LE BLANC, Judge.

text:
    MARTIN et al. v. HUFF TRUCK LINE, Inc., et al.
    No. 2914.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21,1947.
    See 32 So.2d 621.

      C. A. Blanchard, of Donaldsonville, for .•appellant.
    Percy & Wirtz, of Baton Rouge, for ap-pellee.
   LE BLANC, Judge.

The only question that has to be decided on this appeal is whether or not the trial judge properly rejected the demands of one ,of the plaintiffs for personal injuries and .other items of damage arising out of a collision between the automobile which she •was driving and a truck belonging to one .of the defendants in the suit, Huff Truck Line, Inc. The other defendant is the liability insurance carrier, Protective Indemnify Company of New York City.

The collision took place in the afternoon of February S, 1946, when the plaintiff Myrtle Martin, wife of Hiram Martin, was ■returning to her home in Donaldsonville from a visit, with some school children, to a dentist’s office in Napoleonville. Her husband joined her as plaintiff seeking to recover the sum of $150 for. damages to his automobile.

The trial judge held the driver of the defendant truck guilty of gross negligence and awarded the husband the $150 which he had •claimed. However he held that the plaintiff, Myrtle Martin, had not proven any •of the damages she claimed and he rejected them all. The defendants paid the $150 in .satisfaction of the judgment rendered in favor of the husband and the appeal is one ■taken by the wife from that part of the judgment which rejected her demands in •toto.

In her petition she claimed that she was knocked unconscious by the impact of the .collision, was greatly shocked and suffered .great pain for which she asks $500. She is a school teacher and alleges that, because of the accident, she lost three weeks work at school and therefore seeks to be paid that part of her monthly salary or the sum of $62. She alleges that she incurred medical expenses at a drug store in Donaldsonville amounting to the sum of $10 which she also seeks to be paid and finally sets out that she was pregnant at the time of the accident and because of the shock she sustained and the injuries she received she had a miscarriage and is therefore entitled to recover the sum of $2000 for that.

The trial judge filed a written opinion in the record in which, after analyzing each demand, and the proof offered by the plaintiff in connection with each, gives his reasons for rejecting them all.

Taking up the first item of damage, plaintiff, when asked what happened to her at the time the truck hit her car states that she was momentarily knocked unconscious and was dazed. However she says that upon regaining consciousness she got out of the car, looked back to see whether the truck driver was going to stop because she did no think that he would do so as he drove about two blocks after the impact. Immediately following this she says she took the • license number and asked the driver what was the matter with his truck as he could have killed the children in her automobile. She does not say anything about having sustained any injuries which caused her any pain or suffering, stating merely that she suffered a severe shock or a jar. Later on she says that she suffered a pain across her breast, inferring that that was because of her having been thrown over the steering wheel. Naturally, if she was able to look back and saw that the truck kept going, from which she surmised that probably the driver would not stop at all, she must not have been unconscious. Following that, she says she walked up to the truck and spoke to the driver trying to find out what happened. All of this would indicate that she readily realized and understood what went on at the moment and it is hard to conceive that a person acting in that manner would have lost consciousness as she claims she did. The truck driver corroborates her testimony about her walking up to meet him on the road and that she had a conversation with him. Apparently he did not notice that she was dazed or that she was suffering any at that time. With regard to the pain she says she suffered from later on across her breast it seems, from her testimony, that it is so involved with her claim that she was pregnant and that the accident brought on a miscarriage, it would be difficult to assess damages for the one item apart from the other. She did not complain to anyone right at the time about suffering this pain, she looked after the children who were with her and as the car was not incapacitated in any way, she got in and drove in to Donaldsonville.

We hold therefore, that on this item, the trial judge was correct in concluding that the evidence, rather than proving the same, tends to disprove it.

With regard to the next two items, the one for medical bills and that for loss of salary, counsel for the defendants, during the trial of the case, raised the very important point on which they should have been sustained. They obj ected to any testimony concerning them for the reason that if there was any such damage recoverable they were claims of the community existing between the plaintiffs, husband and wife, and therefore should have been presented by the husband on behalf of the community. That is correct; see Jones v. Vernon Parish School Board, La.App., 161 So. 357; Danove v. Mahoney et al., La.App., 176 So. 404. The objection should have been sustained and the testimony excluded.

The last and most important claim presented is the one arising out of plaintiff’s alleged miscarriage. There are two points to be considered in passing on a claim of this character. The first relates to the existence, vel non, of a condition of pregnancy without which, naturally, there could be no miscarriage, and the second, assuming that pregnancy did exist, was the miscarriage caused by the accident complained of.

In considering such a claim we have to realize that we are dealing with a matter which, in its incipiency, is one that is very personal to, and sometimes very confidential between the parties involved. In this case, if pregnancy existed it was in a very early stage, according to the plaintiff’s own testimony. Generally, when the condition is suspected these days, a physician is consulted and although it is shown that on another occasion when plaintiff had a similar suspicion she immediately consulted a doctor, on the occasion in question she did not do so. As a matter of fact it was not until two weeks after the accident, during which time she says she experienced considerable pain and suffering, that she went to see Dr. E. A. Schexnayder and after telling him about the accident she had been in, told him that she thought she was pregnant. She also complained of pains in the chest and having headaches. Dr. Schexnayder examined her and testifies that he made a definite diagnosis of secondary anemia. He states also that he made an examination to find out whether she was pregnant or not and did make a tentative diagnosis of possible pregnancy. This constitutes all the proof found in the record that plaintiff was pregnant.

According to the plaintiff and her husband it was not until the week following her visit to Dr. Schexnayder’s office that she miscarried. They both testify that she became violently sick at about two o’clock in the ■ morning and suffered intensely until five o’clock when she miscarried. They described, in the manner of lay people, what occurred and, to the lay mind, it would seem possible that there had been a miscarriage. However, notwithstanding the fact that she had gone to see Dr. Schex-nayder the week before because she thought she was pregnant, and had had this accident, and notwithstanding the fact that she suffered these terrible child-bearing pains from two o’clock to five o’clock in the morning, and even then delivered a substance which she claims was the miscarriage, they never called a doctor in nor did she go to see the doctor after all of this had occurred. It struck the district judge, as it strikes us,' that their failure to have called in the doctor on that occasion, or at least to have gone to see him afterwards and mention to him what had happened, casts a very serious doubt over their testimony.

There is considerable testimony given by Dr. Schexnayder as well as by Dr. Percy LeBlanc on the question of pregnancy and miscarriage. It is all of a professional and technical nature and whilst they admit that it is difficult in certain cases to say when pregnancy begins or when a miscarriage occurs, the sum and substance of their testimony is that there was no miscarriage in this case. The trial judge concluded that there was not sufficient testimony to support this claim and we again agree with him in the conclusion he reached.

The judgment appealed from is affirmed at the costs of the appellant herein.


text:
    JACKSON et ux. v. STATE FARM MUT. AUTOMOBILE INS. CO.
    No. 2917.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 3, 1947.
    Rehearing Denied Nov. 21,1947.
    Writ of Certiorari Denied Dec. 15, 1947.
    Brumfield & Hebert and J. Elton Huck-abay, all of Baton Rouge, for appellant.
    Watson Blanche Fridge & Wilson, of Baton Rouge, for appellees.
   LE BLANC, Judge.

This case was once before submitted to this court and was disposed of on a special defense pleaded by the defendant liability-insurance carrier and based on the fact that the written notice of the occurrence of the accident which gave rise to- the plaintiffs’ cause of action had not been given as soon as" practicable after the accident, as required under .the terms of the policy sued on. See La.App., 23 So.2d 765. The Supreme Court thereafter reviewed the de-cisión of this court on a writ of certiorari, reversed the holding on the special defense and remanded the case to the district court for trial on the merits. See 211 La. 19, 29 So.2d 177. The case had actually been tried on the merits at the original hearing in the district court and all that remained to be done by that court was to decide the question of negligence, vel non, of the driver of the insured automobile in hav-' ing run over and killed a child. The trial judge resolved that issue in favor of the plaintiffs, parents of the child, and awarded judgment in favor of each in the sum of $3500. The present appeal is from that judgment.

The case, as will be recalled from the former opinions, is a very unfortunate one in which a child sixteen months old was killed by an automobile driven by its -uncle, Carl E. Toler, when he was backing out of the garage in a private yard. Mr. Toler occupied a room in the same house in which the child's parents lived. In fact it was his own house and they all lived together under some arrangement which apparently was mutually satisfactory to them all in so far as any charges for rent and for board and lodging were concerned. This living arrangement between them formed the basis of another special defense which had been urged by the defendant under the policy which it had issued.

When the case was first before him, •the trial judge, in his written opinion, stated that under the facts adduced, the principle under which the defendant sought to be released on the ground that the uncle and the parents were members of the same household and which provided one of the exceptions in the policy, could not be applied. That point is not urged before us now and even if it were we would be inclined to agree with the trial judge that their mere living together under the circumstances shown, did not make the parties members of the same household under which defendant could be relieved of liability under the exception as claimed by it.

The trial judge has written a v.ery thorough and comprehensive analysis of the testimony regarding Mr. Toler’s negligence and, necessarily, manifest error would have to appear in his finding of facts in order for this court to reverse the judgment rendered by him.

There are some features of the case which are similar to some of those that appeared in the case of Comer v. Travelers Ins. Co., 27 So. 2d 438, recently decided by this court and in which, we understand, the Supreme Court has granted writs of review.

Both cases involve the running over of a child of about the same age, by an uncle who lived in the same household with the child’s parents. Without going into any detailed analysis of all the facts in each, we find this important and controlling difference between them: In the Comer case there was no proof that children were accustomed to playing in the vicinity of the driveway over which the car was being backed, whereas in this case Mr. Toler himself admits -that they did and that he was aware of it. For that reason therefore he was called upon to take greater precautions than Rev. Van Dyke, the driver of the car in the Comer case was called on to take and yet the reverse of things.is .what happened. In the Comer case the driver seemed to have been extra precautious in looking to see if the child was following him or had come down from the porch where he had left it with his’ daughter but in this case Mr. Toler merely looked in his rear vision mirror, which we do not think helped him any in seeing the child immediately back of the car and he also looked to his right which neither would have given him a clear sight of what was in the back of him, especially to the left of his car where the child appeared. On that ground therefore we hold that his negligence appears whereas we could not find any negligence on the part of the. driver in the other case.

Another important difference between the two cases lies in the fact that in the Comer case the uncle last saw the child when it was in the custody of an adult person and, as was held, he had a right to assume it would be .taken care of. In this case.Mr.Toler, the uncle, was the last person who was with the child when it was in a place of safety on the back porch of the home. Notwithstanding that, he left it there alone, with the screen door unlatched. Knowing, as he admits that children played around the driveway, he should have exercised more care than he did in leaving the child unattended or at least in notifying its mother or some adult person of it being there alone.

There is considerable testimony in the record concerning a pile of lumber not far from the driveway, the idea as we see it, being to show that the child might have appeared suddenly from behind it without having been seen by Mr. Toler. We do not attach much importance to this because if children were accustomed to playing around the driveway and also around that pile of lumber as is testified to, that should have made Mr. Toler the more apprehensive about their safety and more careful in backing out his car from the garage.

We cannot attach any blame to the child’s parents in this case. The mother had left not long before the accident to go to one of the neighbors to bring her some pudding for her children. When she left, the child was on the back porch and so was her uncle. Mr. Toler, in a way, denies that he was on the porch and intimates that the mother may have been there when he left and that the child at that moment was seated in a high chair at the table. Mrs. Jackson’s testimony is supported however by that of Mrs. Noel Sampson, the neighbor whom she was visiting and also by that of a young boy named Robert Sibley. Mrs. Sampson testified that when she heard the motor of the car starting, Mrs. Jackson was in her kitchen with her, and young Sibley says that when the child was struck he saw Mrs. Jackson rushing from Mrs. Sampson’s house. The father of the child was busy at the time attending to a small garden in the back yard and he therefore cannot be charged with1 any negligence in having failed in his attention to the child.

In the Comer case there was cited a provision of law from Blashfield to the effect .that if a driver has reason to anticipate that a child might be near, it is his duty to see that his way is clear before putting the vehicle into motion. The driver was relieved of negligence in that case under a further provision of the same section to the effect that if he had no reason to anticipate the presence of the child near the car, negligence could not be predicated on the mere fact that he started his machine. We believe that in this case, since Mr. Toler admits that he knew children played around the driveway and also the wood pile near the driveway, he had reason to anticipate their presence and therefore he had the duty to .see that the driveway was clear before he put his car in motion.

■ Much is said in the case about the father having rushed over and observed that the child had been hit when the car was first stopped at his cry of alarm to Mr. Toler and that it was only when Mr. Toler again put the car in motion, after having stopped, that the wheel rolled over the child and killed it. The argument is made that even though Mr. Toler may not have been negligent at first in backing the car and merely-knocking the child down, that he was grossly negligent in putting his car again in motion after having been warned of the danger and then running oyer the child. There is some conflict on the testimony on this point and we do not have to resort to it in order to hold Mr. Toler guilty of negligence, as we are of the opinion as already indicated, that he failed in his duty in tak-in proper precautions before putting the car in motion the first time. Under the facts found in the record, liability was properly imposed by the trial judge against the defendant and the judgment has to be affirmed.

The question of quantum is discussed at some length in brief of counsel for plaintiffs who urge that the amount of the award to éach parent should be increased. There was no appeal taken by. them however, nor did they answer the appeal taken by the defendant. The question of quantum is therefore foreclosed and the award made will have to stand.

For the reasons stated the judgment appealed from is affirmed at the cost of the defendant, appellant herein.