author: CALOGERO, Justice.

text:
    In the Matter of the Succession of William W. HARLEAUX.
    No. 61272.
    Supreme Court of Louisiana.
    May 22, 1978.

      Milton Osborne, Jr., Osborne & Richard, Plaquemine, for applicant.
    Murphy W. Bell, Baton Rouge, for Mrs. Florence B. Harleaux, Mrs. Linda H. Spottsville and William W. Harleaux, Jr.
   CALOGERO, Justice.

On December 21, 1974, William W. Har-leaux died leaving a widow, Mrs. Florence B. Harleaux, a son, William W. Harleaux, Jr., a daughter, Linda Harleaux Spottsville and a community estate. By last will and testament decedent left to his wife his interest in most of the movables and personal property and his interest in the family home. The remainder of his estate Mr. Harleaux left in trust, with Mrs. Harleaux being named original income beneficiary and William Harleaux, Jr. being named successor income beneficiary. Linda Harleaux Spottsville was named principal beneficiary.

Following a judgment of possession the law firm which had handled the succession of Mr. Harleaux proceeded by rule against American Bank and Trust Company in its capacity as trustee of the testamentary trust for collection of the balance of attorney’s fees purportedly due and owing for legal services performed in connection with the succession.

Trustee, defendant in rule, did not except to the mode of the proceedings. The widow and children, however, responded to the rule by filing an “Exception of Unauthorized Use of Summary Proceedings,” The trial judge permitted them to intervene in the proceedings but held that as intervenors they could not object to the form of the action, relying on Code of Civil Procedure Article 1094.

The rule was tried in conjunction with an ordinary petition by the heirs to nullify the judgment of possession. (The trial court’s ruling dismissing the latter petition was affirmed by the Court of Appeal for reasons expressed in their opinion with which we are in agreement.)

The trial court rendered judgment in favor of the law firm Osborne and Richard and against the trustee in the sum of $2,218.30, having concluded in reasons for that judgment that “the estate (succession) owes the attorney’s fees. The trustee should pay this fee from the trust.”

The trustee did not appeal from that judgment. The widow and children did.

The Court of Appeal determined the following: 1) that the widow and children were “the real parties in interest” inasmuch as they were the income and principal beneficiaries of the trust; 2) that they should not have been treated as mere intervenors; 3) that they were indispensable parties (Code of Civil Procedure, Article 641); 4) that they were entitled to challenge the use of summary proceedings to determine what attorney’s fees if any should be paid by the trustee; and 5) that the exception should have been sustained (citing Code of Civil Procedure, Article 2592; Pittman Construction Company v. Housing Authority of New Orleans, 248 La. 471, 179 So.2d 900 (1965); In re Lomm, 195 So.2d 416 (La.App. 4th Cir. 1967), writ refused, 250 La. 541, 197 So.2d 81 (1967). Accordingly, the Court of Appeal reversed the judgment of the trial court insofar as it awarded the attorney’s fees claimed, sustained the exception of unauthorized use of summary proceedings and dismissed the action as of non-suit. Succession of Harleaux, 351 So.2d 1267 (La.App. 1st Cir. 1977).

We granted writs, 353 So.2d 1336 (1978), upon application of the law firm which complained in its only assignment of error of the Court of Appeal’s holding that beneficiaries of a trust are indispensable parties to an action brought against the trust. Also pertinent to relator’s position is their contention that the widow and children are at best intervenors who under Code of Civil Procedure Article 1094, may not object to the form of the action.

Relator’s position is well taken.

Indispensable parties to an action are defined by Article 641 of the Code of Civil Procedure. It provides:

Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.

In determining which parties should be classified as indispensable to an action against a trust it is necessary to read the above article together with Code of Civil Procedure Article 742 and R.S. 9:2093. Article 742 provides that:

The trustee of an express trust is the proper defendant in an action to enforce an obligation against a trust estate.

R.S. 9:2093 provides, in pertinent part, that one of the specific duties of a trustee is to:

. defend all actions that may result in a loss to the trust estate .

Considering the above provisions together it is clear that the only indispensable party to a suit against a trust is the trustee. He is “the proper defendant in an action . against a trust estate.” And the beneficiaries in our view have indirect interests which are not so interrelated or so directly affected that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.

Therefore, the widow and children of William W. Harleaux as beneficiaries of the trust were not indispensable parties to the suit by plaintiff against the trust. They were properly allowed by the trial judge to intervene, but as intervenors they could not object to the form of the proceedings. And since the defendant in rule, American Bank and Trust Company, trustee, did not urge an exception to the use of summary proceedings for the collection of attorney’s fees, the form of the proceeding is now unassailable. Accordingly, the judgment of the Court of Appeal will be reversed insofar as it sustained the trust beneficiaries’ exception’ to the unauthorized use of summary proceedings.

Rather than reinstate the trial court’s judgment in favor of plaintiff and against the trustee awarding attorney’s fees in the sum of $2,218.30 plus legal interest, we find it necessary to remand the case to the Court of Appeal which because of its disposition of the case did not reach the issue of the propriety of that judgment. That issue is properly presented by the appeal taken by intervenors.

Decree

For the foregoing reasons the judgment of the Court of Appeal is affirmed in part and reversed in part. Insofar as it affirmed the judgment of the trial court dismissing intervenor’s petition to annul the judgment of possession and insofar as it taxed costs equally between relator and respondent the judgment is affirmed. Insofar as it sustained intervenor’s exception of unauthorized use of summary proceedings the judgment is reversed, and the case is remanded to the Court of Appeal in order for that Court to rule on the merit of intervenors’ appeal from the judgment in the trial court awarding attorney’s fees and legal interest.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

      .Code of Civil Procedure Article 1091 provides in part:
      A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      (2) Uniting with defendant in resisting the plaintiff’s demand;

      . Code of Civil Procedure Article 1094 provides:
      An intervenor cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties.

      . While an intervenor may not retard the progress of a suit by excepting to the form of the proceedings he may, like a person who could intervene (C.C.Pr. Art. 2086), appeal an adverse judgment.


source: Caselaw Access Project

author: PER CURIAM. SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Sammy Glynn LAWSON.
    No. 61397.
    Supreme Court of Louisiana.
    June 2, 1978.
    Rehearing Denied July 3, 1978.
    L. G. Campbell, Campbell & Campbell, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, First Asst. Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

Defendant Sammy Glynn Lawson was charged by bill of information with two counts of attempted first degree murder. La.R.S. 14:27 (La.R.S. 14:30). On March 25, 1977, at the conclusion of a four-day jury trial, he was found guilty as charged of both counts. Thereafter, the trial court sentenced defendant to serve fifteen years at hard labor on each count, with the sentences to run concurrently.

On appeal, defendant has urged twenty-seven assignments of error, only one of which was argued before this Court. Having reviewed the entire record of the case, we find that the only substantial issue is presented by that assignment argued, relating to the exclusion of a defense witness, Rebecca Ates (Assignment of Error No. 25).

In order to protect the interests of Ms. Ates, a juvenile who was an alleged co-participant in the crimes with which defendant was charged, the trial court appointed an attorney to represent her. When defendant called Ms. Ates as a witness, her attorney asserted the privilege against self-incrimination on her behalf and the trial court sustained the privilege, prohibiting any examination of the witness. Defendant contends that since the privilege against self-incrimination was personal to Ms. Ates, the trial judge erred in allowing her attorney to claim it for her. See, 8 Wigmore, Evidence, §§ 2196, 2270 (McNaughton rev. 1961); State v. Brown, 221 La. 394, 59 So.2d 431 (1952).

Before considering the merit of this assignment, we have concluded that the case should be remanded to the district court for a hearing and determination of whether Rebecca Ates, at the time of trial, would have claimed for herself the privilege against self-incrimination. A transcript of the evidentiary hearing on this point is to be made a part of the record on appeal.

REMANDED.

SUMMERS, J., dissents for the reasons assigned.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, Justice

(dissenting).

In my opinion the authorities relied upon are not controlling here. State v. Brown, 221 La. 394, 59 So.2d 431 (1952), is distinguishable on the facts. There neither the witness nor the attorney actually claimed the privilege against self-incrimination. It was claimed for the witness by the judge. This is impermissible. Reference to Wig-more sheds little light on the subject.

The better view in this situation is to permit the witness’ counsel to assert the privilege against self-incrimination on behalf of the witness. Especially is this true where, as here, the witness is a teenage girl obviously unaware of her rights. Thus it was the better practice which the trial judge adopted — to appoint counsel to represent the young witness and permit him to assert the privilege on her behalf.

A custom has prevailed in most courts of this state for the judge to advise the witness of his right against self-incrimination or to appoint counsel to do so, requiring, however, that upon receipt of the advice the witness must personally assert the privilege. This salutary custom should not be fashioned into a hard and fast rule under all circumstances, but should be left to the sound discretion of the trial judge under the facts and circumstances of each case. A proper latitude, therefore, would permit appointed counsel to assert the privilege for juveniles. Many courts subscribe to this view. See Brody v. United States, 243 F.2d 378 (1st Cir. 1957); cert. denied, 354 U.S. 923, 77 S.Ct. 1384, 1 L.Ed.2d 1438; State v. Pinch, 197 N.E.2d 235 (Ohio App.1962) and the cases cited there.

I am furthermore in disagreement with the remand for a hearing on this issue after trial.

I respectfully dissent from this remand.


author: TATE, Justice. DENNIS, Justice,

text:
    STATE of Louisiana, Appellee, v. Haywood NICHOLAS, Ulyses Smith, and Joseph Jones, Appellants.
    No. 61045.
    Supreme Court of Louisiana.
    June 19, 1978.

      John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendants were convicted of receiving stolen goods valued at $600 and sentenced to terms at hard labor: Nicholas, five years; and Smith and Jones, as multiple offenders, to enhanced terms of twenty years, La.R.S. 15:529.1.

The defendants appeal and argue various assignments of error. We find, however, that only Smith's Assignment 4 and the Nicholas-Smith-Jones Assignment 1 raise issues requiring discussion.

Smith Assignment 4

This assignment is based upon an objection during the hearing to impose enhanced punishment upon Smith, after his conviction, as a multiple offender. His counsel objected to the introduction of a document on the basis of hearsay and improper authentication.

At the multiple offender sentencing hearing of defendant Ulyses Smith, Officer Bono, assigned to the Record Center, Identification Section of the New Orleans Police Department, was qualified as an expert in fingerprint identification. During the course of his testimony, Officer Bono was shown a document, labeled S-5, purporting to be copies of defendant Smith’s arrest and conviction records and fingerprints from the Louisiana Department of Public Safety, Bureau of Identification. Officer Bono testified that he had received this document from that agency.

Beneath the copy of defendant’s alleged fingerprints was the notation, “I certify that this is a true copy of this subject’s record from the files of the Bureau of Identification.” This notation was apparently signed by a “John R. Flowers” for a “Col. Donald Thibodaux, Superintendent” (typed name).

The purpose of introducing the state police records was apparently to prove the defendant’s fingerprints corresponded: (a) with fingerprints on an arrest record (S-6) (received without objection) for commission of a Jefferson Parish prior offense (which was adequately proved by introduction of the convicting court’s certified copy of the indictment and conviction (S-8)); and (b) with fingerprints of the accused taken during the multiple offender hearing.

In State v. Martin, 356 So.2d 1370 (La.1978), we pointed out that, before documentary evidence may be received to prove the truth of its content, (a) if not admissible within an exception to the hearsay rule, it must be made admissible for that purpose by statute, and (b) it must be authenticated. See also State v. Tillman, 356 So.2d 1376 (La.1978).

A. Admissibility

The state contends solely that the state police record, if properly authenticated, is admissible by virtue of La.R.S. 15:529.1 F. This statutory authorization only permits proof of certain specific facts by certificate of the warden, etc., of a penitentiary under seal of his office for the purpose of proving prior offenses at a multiple-offender hearing. The statute does not, however, authorize such proof to be made by the superintendent of state police or of any non-penitentiary agency, as was attempted here.

Nor can we find any other statutory authorization which permits proof of a fact to be made, independent of the rules of evidence, merely by a certified copy of police records. La.R.S. 15:581.16, for instance, permits introduction of certified copies of such state police records “in the same manner as the original might be.” Likewise, La.R.S. 13:3711 similarly permits proof by certified copies of state agency records to be made “equally with the originals” — i. e., if the originals would have been admissible.

Nevertheless, if the state police records are admissible, properly authenticated certified copies are admissible by virtue of these statutes.

For reasons to be noted, the state police fingerprint records are admissible under the traditional “public documents” exception to the rule against hearsay. This exception is historically based upon the principles of necessity and the probability of trustworthiness. 5 Wigmore on Evidence, Sections 1631, 1632 (Chadbourn Rev., 1974). The exception is founded primarily upon the presumption that an individual entrusted with a duty will do his duty and make a correct statement, 5 Wigmore, Section 1631 et seq.; McCormick, Evidence, Section 315 et seq. (2d ed. 1972); Pugh, Louisiana Evidence Law, pp. 476-77 (1974).

As these authorities note, the usual hearsay requirement that the declarant (here, the entrant or custodian) be shown to be unavailable, is dispensed with, largely because of the public inconvenience that would otherwise result from the disruption of public business to be occasioned by the continual summoning of public officers to prove routine facts reflected by their records with a high probability of accuracy.

As these authorities also indicate, however, the evidence so introduced must be admissible for some relevant and proper purpose, and the trial court must scrutinize such offerings so as to limit their introduction in accordance with this (especially in jury trial situations). Further, upon any indicia of unreliability being shown, the trial judge has the discretion to reject the evidence or to condition its admissibility upon further proof, and should exercise it, in order to assure that the probability of trustworthiness is so great as to justify the document’s introduction as an official record under this exception to the hearsay rule.

The introduction of properly certified copies of fingerprints to prove the identity of an accused with a former offender, when maintained by an agency within its statutory duty to do so, is considered to be admissible within this “public document” hearsay exception — that is, the properly authenticated record is evidence of the fingerprint, and that it is maintained in the office under the name and sentence of the offender thereby shown. Wigmore, Sections 1635, 1678a. (Of course, the offeror must, by additional competent evidence, connect the fingerprints with the prior conviction and with the present offender, as was done here.)

The trial court therefore properly overruled the defendant’s objection insofar as he complained that the document offered constituted hearsay.

B. Authentication

While the contested document does not constitute hearsay evidence, it is, nevertheless, inadmissible because not properly authenticated.

As we noted in Martin, “[A]n official document may belong to a class clearly admissible, but still the document actually offered must be authenticated as genuinely that which it purports to be.” 356 So.2d 1374. Generally, if an official writing is proved to come from the proper office where such documents are kept, the document will be authenticated as genuine by the certification of the custodian because of the presumption that he will carry out his duty to receive, record, and certify only genuine official papers and reports. 7 Wigmore, Sections 2158-59; McCormick, Section 224.

As previously noted, since the original of the record was itself admissible, the copy of the state police record of the fingerprints is admissible in evidence if “certified by the superintendent of state police to be a true copy of the original.” La.R.S. 15:581.-16. See also La.R.S. 15:457, permitting certification by the officer who is the legal custodian thereof to any matter with the general powers entrusted to him.

In State v. Tillman, 356 So.2d 1376 (La.1978), documents brought into- court by a police officer assigned to the record room were held to be not properly authenticated, since they were uncertified and because it was not established by the testimony of an official custodian that the documents were genuine originals. We there recognized the principle of delegation of authentication (see Martin), but we noted that “it should clearly appear in evidence that the person authenticating an original by custody or certifying a copy has been entrusted with legal custody of the original document by the original official custodian.” 356 So.2d 1378.

Applying the above stated principles to the facts of the instant case, the attestation, “John R. Flowers [signed] for Col. Donald Thibodaux, Superintendent” does not satisfy authentication requisites.

According to this court’s reasoning in Tillman and Martin, in order to be properly authenticated, a copy of a document presented in court must either be certified to by the officer who is the legal custodian of the document, or it must appear by clear evidence that the person certifying the document has been entrusted with legal custody of the original by the original custodian. Likewise, the witness introducing the document in evidence must testify from personal knowledge as to the fact of its official custody, such as testimony as to from whom or from which office he received the document. Wigmore, Section 2158 B(b)(1).

Here, although there was an attempt to certify the documents, the certification failed to reveal that the certifier was either the legal custodian or the custodian’s legally appointed delegate. If, for instance, Officer Bono had testified that John R. Flowers was the police officer in charge of the state police records, Flowers’ certification would then be adequate authentication.

However, there is no evidence whatsoever as to Flowers’ authority to certify the authenticity of the document on behalf of the superintendent.

Accordingly, the state failed to show proper authentication, and the trial court erred in overruling the defendant Smith’s objection when this document was introduced to prove a prior conviction at the post-conviction enhanced punishment proceeding. Consequently, Smith’s sentence must be vacated, and the case remanded (although his conviction is affirmed) to the district court for him to be re-sentenced in accordance with law.

Nicholas-Smith-Jones Assignment 1

This assignment is based upon the trial court’s questions to the defendant Nicholas, which are alleged to have constituted a comment by the judge upon the evidence prohibited by La.C.Cr.P. art. 772. The trial judge overruled the defendant’s objection.

The state argues that, since the defendants did not request an admonition or mistrial after their objection was overruled, they cannot complain on appeal of the alleged error. As we noted in State v. Hamilton, 356 So.2d 1360 (La.1978), this court is not barred for such reason from review of a timely objection which is overruled, since a request for such admonition or mistrial would be a vain and futile formality. (If the objection is sustained, however, the defendant cannot on appeal complain of the alleged error unless at the trial level he had requested and had been denied either admonition to disregard or a mistrial. La.C.Cr.P. art. 771.)

On the merits, the incident occurred during the testimony of the defendant Nicholas. Previously, the arresting officer had described the three defendants when arrested as wearing an orange jumpsuit, a yellow shirt, and a white T-shirt, respectively. A witness to the burglary in which the property was stolen likewise testified to such dress of the three participants in the burglary.

Nicholas took the stand to deny participation in the burglary. Although he had been identified as wearing an orange jumpsuit, he denied ever possessing one. He further testified that, at the time of arrest, Jones was wearing a green shirt and pants (“I can’t rightly recall, but I believe it was a green outfit, if I’m not mistaken”), and concluded “I don’t believe them.”

By way of clarification, the trial court asked: “You don’t believe what?” Nicholas answered: “That those colors—you know, the clothes they say [we were wearing] was accurate because I think he was all in green.”

The trial court then asked, coming perilously close to a comment upon the witness’s credibility, “But you’re not sure, are you?” (Nicholas replied: “I don’t know.”) His counsel then objected to the court questioning the witness, without stating the ground therefor.

Insofar as the objection was arguably based upon the trial judge asking clarifying questions without commenting on the evidence, the objection lacks merit. See State v. Layssard, 310 So.2d 107 (La.1975); State v. Coffil, 222 La. 487, 62 So.2d 651 (1972); State v. Wilson, 204 La. 24, 14 So.2d 873 (1943). As McCormick on Evidence, Section 8, p. 12 (2d ed. 1972) notes: “The judge in his discretion may examine any witness to bring out needed facts which have not been elicited by the parties . [However, in those states where] the judge does not have power to comment on the weight of the evidence, the judge’s questioning in jury cases must be cautiously guarded so. as not to constitute an implied comment.”

We do not find the question to constitute reversible error — principally because the ground for the objection stated at the trial did not complain of it as an implied comment on the evidence, but also because, in the factual context, it could possibly be considered a clarifying question rather than an improper comment upon the defendant’s credibility.

Conclusion

The other assignments do not present arguably reversible error, nor do they involve legal issues either not governed by clearly applicable legal principle or else likely to arise in the future. We have discussed and disposed of them in an appendix attached hereto, which remains a public record of this court but which will not be published with this opinion.

Accordingly, for the reasons assigned, we affirm the convictions and sentences of the defendants Nicholas and Jones, and we affirm the conviction of the defendant Smith; however, as to the defendant Smith, we vacate the sentence imposed and we remand his case to the district court for re-sentencing in accordance with law.

CONVICTIONS AND SENTENCES AFFIRMED AS TO TWO DEFENDANTS; CONVICTION AFFIRMED AS TO THE THIRD DEFENDANT, BUT SENTENCE IS VACATED AND CASE REMANDED AS TO HIM FOR RE-SENTENCING IN ACCORDANCE WITH LAW.

SUMMERS, J., concurs.

DIXON, J., agrees as to Nicholas and Jones, but concurs as to Smith, disagreeing with the discussion as to Smith.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

I concur in the result reached by the majority but I respectfully disagree with the statement of the law regarding the admissibility and authenticity of official written records.

In its treatment of the admissibility issue the majority has created a dangerously broad exception to the hearsay rule not justified by our statutes or the treatise writers upon which it relies. In my opinion it opens the door too wide for the introduction of possibly unreliable evidence as to the identity of persons from the files of the keepers of secondhand information.

As the majority states, a common law exception to the hearsay rule exists for written statements of public officials made with a duty to make them, made upon firsthand knowledge of the facts. However, our legislature has not recognized such a general exception for official written statements. Although it has recognized specific exceptions for statements or records of certain public officials, an exception for state police records has not been enacted by the legislature.

Furthermore, the state police fingerprint card would not be admissible under even the liberal common law exception to the hearsay rule for official written statements noted by the majority in footnote 2 of its opinion: “[T]he facts recorded must be within the personal knowledge of the certifying official (or a subordinate of his office) entrusted with the legal duty to make (and retain) such record based upon firsthand knowledge of the facts recorded.” See, 5 Wigmore, Evidence, § 1635(3) (Chadbourn rev. 1974):

“Thus, for matters not occurring in the presence of the officer, his record or certificate is inadmissible, not only because in general a witness must have personal knowledge, but also because an officer’s duty is usually concerned only with matters done by or before him. Tested by either principle, there is a shortcoming.”

See also, McCormick, Evidence, § 316 (Cleary ed. 1972). In the instant case the fingerprint card contained information identifying a person with a particular fingerprint, but there was no showing that this information was within the personal knowledge of the certifying official or anyone within his office.

The copy of the fingerprint card on file with the Department of State Police which was introduced into evidence did not reveal under whose authority the fingerprints were taken. The card stated that the fingerprints were taken by “R. M. Gresham” but did not state for which official, if any, this individual took the fingerprints. The Bureau of Identification within the Department of State Police is authorized to maintain records transmitted to it by other state agencies (see La.R.S. 15:581 et seq.). In all likelihood the fingerprint card was such a record prepared outside the State police office and the information thereon linking a fingerprint with an individual was not within the personal knowledge of the certifying official or any of his subordinates.

I further respectfully disagree with the majority opinion’s treatment of the authentication issue. Officer Bono could have provided evidence authenticating the document by testifying (1) that Col. Thibodeaux was its official custodian; (2) that custody of the original and authority to certify copies had been delegated to Flowers by Thibo-deaux; and (3) that the certified copy in Bono’s possession which had been given to him by Flowers was a true copy of the original in Thibodeaux’s custody. The procedure outlined by the majority is sketchy and does not provide the detailed testimony required in authentication by testimony. See, State v. Martin, 356 So.2d 1370 (La.1978); State v. Tillman, 356 So.2d 1376 (La.1978).

      . While La.R.S. 15:529.1 F facilitates proof of necessary facts permitting enhancement of the punishment in a multiple-offender hearing, such facts may also be proved by other competent evidence. State v. Curtis, 338 So.2d 662 (La.1976).

      . In addition to other limitations upon admissibility, however, the facts recorded must be within the personal knowledge of the certifying official (or a subordinate of his office) entrusted with the legal duty to make (and retain) such record, based upon first-hand knowledge of the facts so recorded. Wigmore, Section 1635; McCormick, Section 315. Thus, in the present instance, the conviction reports on the state police record are a second-hand compilation of data which, when relevant, are provable by official records of the agency with first-hand knowledge (i. e., the conviction trial court), but not (in the absence of statutory authorization) by the present state police document.

      . In Tillman the relevant document was a copy which bore no certification that it was a true copy of the original, and the witness who brought the document was not its legal custodian or the custodian’s delegate (as required for in-court authentication of uncertified documents, see 7 Wigmore, § 2158). In Martin, the documents were held to be properly authenticated because the evidence revealed that they were properly certified by a deputy sheriff, an authorized delegate of the custodian of the records, the sheriff.


text:
    STATE of Louisiana v. Eugene McGOWAN.
    No. 61111.
    Supreme Court of Louisiana.
    June 19, 1978.

      Kenneth Michael Wright, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Steven William Hale, Gregory D. Lyons, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged with a violation of R.S. 14:95.1, possession of a firearm by a person convicted of certain felonies. While unrepresented by counsel, he entered a plea of not guilty, waived his right to a jury trial, and was tried. He was convicted and sentenced to serve five years at hard labor in the custody of the Department of Corrections. He appealed to this Court. Noting that he was still unrepresented, we remanded the ease to the trial court for a determination of whether defendant was entitled to have counsel appointed to represent him in connection with his appeal. Thereupon the district court appointed for this appeal the attorney who now represents him. Counsel for defendant designated the record necessary for the appeal and assigned one alleged error in support of his effort to overturn the conviction.

Appellate counsel contends that the trial court committed error when it failed, or refused to appoint an attorney for defendant at his trial after defendant twice informed the court that he was unable to employ an attorney. He asserts that the ruling was in contravention of Article I, Section 13 of the Louisiana Constitution of 1974 and of the principles enunciated in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In effect, then, defendant complains of both the court’s refusal to appoint him counsel and the conviction which followed trial at which he was unrepresented.

It should be noted here that defendant contended that he was financially unable to secure his own counsel, requested that the court appoint him a lawyer, and specifically did not waive counsel. In fact, he objected to being tried without a lawyer. The trial judge, on the other hand, gave defendant several opportunities to employ counsel, proceeding to trial only on the defendant’s fifth court appearance and his third appearance following his uncounseled guilty plea at arraignment.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Argersinger v. Hamlin, supra, landmark U.S. S.Ct. decisions, define the right to counsel when a defendant is tried of a felony or misdemeanor and the sentence which may be imposed involves the possibility of imprisonment. These cases set the constitutional standard or mandate: Absent a knowing and intelligent waiver, no defendant may be imprisoned if he was not represented at trial by counsel.

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.” Gideon, 83 S.Ct. at 796.
“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Argersinger, 92 S.Ct. at 2012.

In the case at bar defendant faces a five year incarceration in the penitentiary following a trial at which despite his refusal to waive, he was not represented by counsel. Only if we were to find an implied waiver despite defendant’s vocal protest not to waive counsel could we find that, defendant had not been denied his constitutional right to counsel at trial.

Such implied waiver could conceivably arise in a case where defendant clearly able to secure retained counsel persists in demanding court appointed counsel and desists from employing an attorney despite a reasonable opportunity to do so. In the case at bar there was no waiver either express or implied, by whatever construction.

The trial judge made his determination that defendant was not an indigent nor otherwise entitled to appointment of counsel after interrogating him and learning that he had an undivided one-fourth interest in a house worth $25,000, title to same being in the name of defendant’s deceased mother and father.

During that questioning defendant contended that he had been injured in an automobile accident and out of work for four months, and because the injury was not work related he was not drawing workmen’s compensation. He admitted that he drove a 1975 Buick which had a $4,000 mortgage balance, but that the monthly payments were being made under a disability insurance policy in connection with the loan. Defendant lived in the inherited house and contended that he could not readily borrow on the house, presumably because his interest was only an undivided one-fourth and because title even as to that one-fourth was not in his name. Furthermore he contended that were he able to borrow against the property, he had no means to repay a loan. .

At best the issue concerning whether defendant was able to retain private counsel was a close one.

The determination of defendant’s in-digency should have been made in a hearing in accordance with R.S. 15:147(A). That statute provides:

The determination of indigency of any accused person shall be made by the court at any stage of the proceedings. The chief indigent defender or his assistants, or a member of the indigent defendant panel appointed by the board or the court for such purpose, shall be allowed to summon witnesses to testify before the court concerning the financial ability of any accused person to employ counsel for his defense.
In determining whether or not a person is indigent and entitled to the appointment of counsel, the court shall consider:
(a) Whether the person is a needy person and the extent of his ability to pay, the court shall consider such factors as income, property owned, outstanding obligations, number and ages of dependents;
(b) Release on bail alone shall not disqualify a person for appointment of counsel. In each case, the person subject to the penalty of perjury shall certify in writing such material factors relating to his ability to pay as the court prescribes, [emphasis provided.]

Had the court appointed an attorney and later found the defendant able to pay, it had available the provisions of R.S. 15:148 to order partial reimbursement. R.S. 15:148 provides:

A. To the extent that a person is financially able to provide for an attorney, other necessary services and facilities of representation and court costs, the court shall order him to pay for these items. The court may order payment in installments, or in any manner in which it believes reasonable and compatible with the defendant’s financial ability.
B. Payments so made shall be transmitted to and become a part of the indigent defender fund of the district in which the person is prosecuted.

Under all the circumstances here we conclude that defendant should have had an attorney appointed to represent him at trial and that the uncounseled trial conviction violates defendant’s sixth amendment right to counsel.

Decree

For reasons assigned, the conviction and sentence are reversed; the case is remanded for a new trial consistent with law and the views herein expressed.

CONVICTION REVERSED; SENTENCE VACATED; CASE REMANDED.

SUMMERS, J., dissents.

      . . .At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punisha-bie by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

      . In the Louisiana State Bar Association report to the commission on the indigent defendant system, page 12 of the LSBA report, it is suggested that under the statute the trial judge in his discretion should appoint counsel in “cases where a question of indigency arises. This would serve to resolve the question of indigen-cy in favor of the person charged with the crime.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Albert DAWSON.
    No. 61170.
    Supreme Court of Louisiana.
    June 19, 1978.
    Raymond J. LeJeune, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Albert Dawson was charged by bill of information with second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty of manslaughter and sentenced to serve twenty-one years at hard labor with credit for time served. On his original appeal, defendant made no assignment of errors as required by La.Code Crim.P. art. 844. Finding no errors “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence” (La.Code Crim.P. art. 920(2)), this court affirmed his conviction and sentence. Subsequently, defendant applied to the district court for a writ of habeas corpus, alleging the incompetence of counsel on appeal in that counsel failed to perfect assignments of error. After hearing, the writ was denied by the district court. Upon defendant’s application to this court for relief, we granted the writ of habeas corpus and ordered the district court to appoint an attorney to perfect assignments of error on a new appeal. On his new appeal, defendant relies upon two assignments of error for reversal of his conviction and sentence.

We have reviewed the record and find the two assignments of error to be without merit. Accordingly, we affirm defendant’s conviction and sentence.

DECREE

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

      . State v. Dawson, 333 So.2d 637 (La.1976).

      . State ex rel. Dawson v. Maggio, 350 So.2d 1222 (La.1977).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Aaron DELANEY.
    No. 61227.
    Supreme Court of Louisiana.
    June 19, 1978.
    Brian M. Begue, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Aaron Delaney was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of previous felony convictions under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be a fourth offender and sentenced him to serve ninety-nine years at hard labor with credit toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant does not rely upon any assignment of errors but urges this court to review the record for errors “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2).

Imposition of an illegal sentence is such an error, which we may note ex pro-prio motu under authority of La.Code Crim.P. art. 920(2). State v. Lindsey, 351 So.2d 1178 (La.1977); State v. Jones, 341 So.2d 3 (La.1976).

We note possible error in the fact that the ninety-nine year prison sentence imposed on defendant, which is the longest term prescribed for defendant’s conviction for armed robbery, exceeds his natural life, in contravention of La.R.S. 15:529.1 A(3), which provides:

Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows:
If the fourth or subsequent felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then the person shall be sentenced to imprisonment for the fourth subsequent felony for a determinate term not less than the longest term prescribed for a first conviction and not more than his natural life and in no case less than twenty years.

At the outset, we note that enhanced sentencing under this provision is not authorized if, upon a first conviction, the offender would be subject to life imprisonment. The provision further provides that the sentence for the fourth subsequent felony shall be for a determinate term of not less than the longest term prescribed for a first conviction and not more than his natural life and in no case less than twenty years.

The issue is whether a sentence for a determinate number of years which is the longest term prescribed for the first conviction violates the prohibition in the statute that the sentence be “not more than his natural life.” We think not. The provision must be read as a whole to give effect to all of its parts. Hence, if the sentence of imprisonment is for a determinate term which is not less than twenty years and which represents the longest term prescribed for a first conviction, then it constitutes the minimum sentence authorized for a fourth subsequent felony conviction and does not violate the prohibition in the statute that the sentence be “not more than his natural life.”

In the instant case, after having been convicted for armed robbery, defendant was found to be a fourth offender under the Habitual Offender Law. The ninety-nine year sentence imposed on defendant is the longest term prescribed for armed robbery. La.R.S. 14:64. Moreover, it is not less than twenty years. Hence, it does not violate the prohibition in the statute that the sentence be “not more than his natural life.” Hence, the sentence complies with La.R.S. 15:529.1 A(3). It is not an illegal sentence.

Having reviewed the record, we find no errors “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2). Accordingly, we affirm defendant’s conviction and sentence.

DECREE

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

DIXON, J., dissents.


text:
    STATE of Louisiana v. Carl R. CRAIG.
    No. 61298.
    Supreme Court of Louisiana.
    June 19, 1978.
    Alton T. Moran, Director, Allen J. Ber-geron, Jr., App. Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant was charged by bill of information with the crime of simple burglary, La.R.S. 14:62. After waiving trial by jury defendant was found guilty as charged and sentenced as a multiple offender to serve nine years at hard labor. On appeal he relies on six assignments of error for reversal of his conviction and sentence, five of which were not briefed or argued.

We have reviewed the record and find no merit in defendant’s assignment of error which was briefed and argued. Accordingly, we affirm his conviction and sentence.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Anthony KEMP.
    No. 61301.
    Supreme Court of Louisiana.
    June 19, 1978.

      John E. Miller, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The defendant, Anthony Kemp, was arrested on February 24, 1975. Formal charges, by Bill of Information, were filed on July 8, 1975. The State charged the defendant with the armed robbery of Mrs. Huey Sanders in violation of LSA-R.S. 14:64. The trial court heard a Motion for Reduction of Bond and for Speedy Trial on January 16, 1976. A Motion to Quash was filed on June 8, 1976. The defendant was tried by jury on July 5-7, 1976. The jury returned a verdict of guilty and the court subsequently sentenced the defendant to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence.

The defendant appeals, relying on five assignments of error. Assignment of Error No. 5 is considered abandoned as it was neither briefed nor argued. State v. Phillips, La., 337 So.2d 1157 (1976).

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends that the trial court erred in failing to give defendant a speedy trial and overruling defendant’s Motion to Quash based upon the delay in bringing defendant to trial.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth a balancing test which weighs the conduct of both the prosecution and the defense. Four factors comprise this test: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right; and (4) the prejudice to the defendant. This Court adopted the Barker v. Wingo test. State v. Alfred, La., 337 So.2d 1049 (1976); State v. Howard, La., 325 So.2d 812 (1976); State v. Moore, La., 300 So.2d 492 (1974).

In the instant case, the delay between arrest and trial was sixteen months and eleven days. The date of the Bill of Information is July 8, 1975. Therefore, the defendant was tried a year after formal charging. This Court has held that even more lengthy delays do not constitute denial of speedy trial in violation of constitutional guarantees. State v. Fraise, La., 350 So.2d 154 (1977); State ex rel. Miller v. Craft, La., 337 So.2d 1191 (1976); State v. Neyrey, La., 341 So.2d 319 (1976); State v. McDaniel, La., 340 So.2d 242 (1976); State v. Moore, La., 300 So.2d 492 (1974).

The record reflects that reasons for delay were transfers of the case from one section of court to another by the prosecution, delay in obtaining counsel, and a Motion for Continuance by the defendant. The reallotment of the case by the District Attorney does not appear to have been a deliberate attempt to delay or hamper the defense. Delays were caused by both prosecution and defense.

The defendant asserted his right to a speedy trial on January 16,1976. This date is almost eleven months after his arrest. The minutes of November 20, 1975, reflect that the court set the case for trial for June 1,1976. The defense raised no objection to that date.

The defendant states that the prejudice resulting from the delay was the fact that the victim died, and therefore the jury did not hear from the victim’s own lips that she could not identify the defendant at the lineup. We find that the defendant demonstrates no prejudice. The record reflects that a stipulation was entered that the victim could not identify the defendant as the perpetrator of the armed robbery.

The United States Supreme Court, in Barker v. Wingo, supra, stated:

“The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.” [Footnote omitted.]

We find that, the defendant has not met the Barker v. Wingo test. Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant contends that a fifteen year sentence without benefit of parole, probation, or suspension of sentence constitutes excessive, cruel, and unusual punishment.

The only reference to the sentencing procedure is in the minutes. The minutes reflect only that counsel objected to the imposition of a fifteen-year sentence. The sentence was imposed prior to the 1977 sentencing statute. See LSA-C.Cr.P. Art. 894.1. Hence, the trial judge recorded no extensive reasons for the sentence.

This Court has not held that it has the authority to review the excessiveness of a defendant’s sentence within the statutory limits, even when timely objection is made. See State v. Williams, 340 So.2d 1382 (1977), and cases cited therein. However, assuming that the Court has such authority, there is no adequate showing that the trial court abused its discretion in sentencing the defendant in this case.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

The defendant contends that he has been denied his right to judicial review of his sentence based upon an incomplete record. The basis for this contention is the fact that some of the words in the transcript were inaudible.

In State v. Ford, La., 338 So.2d 107 (1976), this Court stated:

“A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction.”

Since defendant made no specific showing of prejudice, we find this assignment of error without substance.

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

DIXON, J., concurs.


text:
    STATE of Louisiana v. Wayne THOMAS.
    No. 61308.
    Supreme Court of Louisiana.
    June 19, 1978.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, Paul R. Brady, III, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant was indicted for aggravated rape, a violation of R.S. 14:42. Following a trial by jury defendant was found guilty of forcible rape (R.S. 14:43.1) by a unanimous verdict. He was thereafter sentenced to twenty years at hard labor in the custody of the Department of Corrections. On appeal defendant relies on five assignments of error in seeking a reversal of his conviction and sentence.

We find no merit in the assignments of error.

Decree

Accordingly we affirm defendant’s conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs.

      . The substance of appellant’s assignments of error were as follows:
      1. The court erred in overruling defense motion to suppress the identification.
      2. The court erred in denying motions for new trial and arrest of judgment in that state failed to prove all elements of crime, more particularly, that defendant was not the husband or separated from bed and board from the victim.
      4. Court erred in overruling defense objection to prosecutor’s rebuttal argument.
      5. Court erred in overruling defense motion for mistrial in that jury was not sequestered.
      6. Court erred in allowing physical examination of physical evidence by jury in contravention of Article 793.


text:
    STATE of Louisiana v. Manuel YOUNGBLOOD.
    No. 61332.
    Supreme Court of Louisiana.
    June 19, 1978.
    Birch P. McDonough, McDonough & McDonough, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph Roberts, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

SUMMERS, Justice

(concurring).

I concur in the affirmance of this conviction and sentence for the reasons assigned in my concurring opinion in State v. Ferguson, 358 So.2d 1214 (No. 60,526 on the docket of this Court, rendered April 10, 1978.)


author: TATE, Justice.

text:
    STATE of Louisiana, Respondent, v. Jimmy Lee SCARBOROUGH, Defendant-Relator.
    No. 61334.
    Supreme Court of Louisiana.
    June 19, 1978.
    See also La., 354 So.2d 204.
    Marcia Thomas Pendleton, Thomas & Dun-ahoe, Natchitoches, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., S. Michael Henry, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice.

The issue before us concerns an allegedly excessive sentence imposed without stating the factual reasons therefor, as required by La.C.Cr.P. art. 894.1 (1977).

The defendant was charged by 13 bills of information with issuing 13 worthless checks, La.R.S. 14:71, on November 25, 26, and 29, 1976. The checks totalled $406.96; all but four of them were for amounts of $30.00 or less, and the largest of them was for $90.30.

On October 28,1977, the defendant pleaded guilty. The trial court specifically informed him that, by doing so, he subjected himself to imprisonment “for a long time— up to six months on each charge.” Accepting his plea of guilty, the trial court then sentenced the defendant to 13 consecutive maximum sentences on each charge, La.R.S. 14:71, totalling six and one-half years, in the parish prison.

The defendant’s counsel specifically objected to the lengthy sentence as being excessive in violation of La.Const. of 1974, Article 1, Section 20. The trial court overruled the objection, stating: “After careful consideration of accused’s record and pre-sentence report — sentence was based thereon.”

On the defendant’s application, we granted certiorari, La., 354 So.2d 204 (1978), to review his contention that the consecutive sentences were excessive in light of the legislative guidelines provided by La.R.S. 14:71.

This enactment is set forth in full in an appendix to this opinion. It graduates maximum punishment for a worthless check according to its amount. Relevant to the present issue, the legislation also provides for enhanced punishment upon conviction of the offense after prior conviction for the same offense, and it indicates a legislative policy as to the appropriate penalty based upon the aggregate of the worthless checks issued, when two or more such offenses are committed.

Specifically, the legislation provides for imprisonment, with or without hard labor, Cf: (a) not more than 10 years, when the amount of the check or checks is $500 or more; and (b) not more than 2 years, when the amount is between $100 and $500. The statute also provides for imprisonment without hard labor of not more than six months, when the amount is less than $100; in this event, however, the sentence imposed may be imprisonment, with or without hard labor, of not more than two years, if the offender “has been convicted of issuing worthless checks two or more times previously.”

Additionally, the legislation provides: “When the offender has issued two or more worthless checks, the aggregate of the worthless checks shall determine the grade of the offense.”

Here, so far as the record shows, the defendant (never before- convicted of issuing a worthless check) was guilty of issuing 13 worthless checks over a period of four days, each less than $100, but totaling $406.96 in aggregate. He was sentenced to six and one-half years imprisonment.

Construing the statute as a whole, the apparent legislative policy with regard to imprisonment for the offense of issuing a series of worthless checks contemplated a sentence of not more than two years when the aggregate amount, as here, was less than $500. The legislature also contemplated enhancement of the punishment for issuing worthless checks of less than $100 if the offender “has been convicted of issuing worthless checks two or more times previously” — but the record before us does not indicate such basis for enhancement of the punishment.

In exercising his discretion to impose consecutive sentences beyond the norms as thus indicated by the legislature, the trial judge, stated that he had done so on the basis of the accused’s prior record and pre-sentence report. The trial court did not, however, comply with La.C.Cr.P. art. 894.1 (1977), then applicable. This enactment sets forth certain pertinent sentencing guidelines, and it further provides: “The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

As in State v. Sepulvado, 359 So.2d 137 (1978), where an apparently excessive sentence was imposed without a recitation by the sentencing judge of the considerations and factual basis upon which he relied, we vacate these sentences and we remand these cases to the trial court, with instructions that it re-sentence the defendant in compliance with La.C.Cr.P. art. 894.1 and in the light of the considerations above expressed.

Decree

Accordingly, the convictions are affirmed, but the sentences imposed are vacated and set aside, and the case is remanded to the trial court with instructions that the defendant be re-sentenced in accordance with La.C.Cr.P. art. 894.1.

CONVICTIONS AFFIRMED, BUT SENTENCES SET ASIDE, AND CASE REMANDED FOR RE-SENTENCING.

SANDERS, C. J., concurs.

APPENDIX

On the date of the offenses, La.R.S. 14:71 (1976) provided as follows:

Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation. This provision shall not apply to payments on installment contracts or open accounts.
The offender’s failure to pay a check, draft or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn, shall be presumptive evidence of his intent to defraud.
Whoever commits the crime of issuing worthless checks, when the amount of the check or checks is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
When the amount of the check or checks is one hundred dollars or-more, but less than five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
When the amount of the check or checks if less than one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of issuing worthless checks two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or be fined not more than one thousand dollars, or both.
When the offender has issued two or more worthless checks, the aggregate of the amount of the worthless checks shall determine the grade of the offense.
In addition to any other fine or penalty imposed under this Section, the court may, at its discretion, order as part of the sentence, restitution in the amount of the check or checks.

[The second paragraph was amended by Act 367 of 1977 to provide for presumptive evidence of fraud additionally if the offender fails to pay within ten days after delivery or personal tender of the notice of non-payment. The amendment is immaterial to the present discussion.]

      . In State v. Baker, 359 So.2d 110 (1978), we held this provision to be unconstitutional by reason of its uncertainty in application, so as to permit arbitrary, non-uniform, and unfair prosecution for the offense. Here, for instance, had the statutory provision been interpreted as requiring mandatory joinder of all counts in one charge (instead of permitting 13 separate charges, as was done), the offender was subject to a maximum punishment of two years, with or without hard labor, for the aggregate of $406.96 in worthless checks issued over the four-day period.


author: PER CURIAM. CALOGERO, Justice,

text:
    STATE of Louisiana v. Louis F. LUCIO.
    No. 61352.
    Supreme Court of Louisiana.
    June 19, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James D. Maxwell, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant was charged by bill of information with the crime of aggravated battery, La. R.S. 14:34. The defendant was found guilty as charged and sentenced to serve ten years at hard labor. On appeal he relies on two assignments of error for reversal of his conviction and sentence.

We have examined the entire record and find that the errors complained of probably did not result in a miscarriage of justice, were not prejudicial to the substantial rights of accused, and did not constitute a substantial violation of a constitutional or statutory right. Accordingly, we affirm the defendant’s conviction and sentence.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

By assignment of error number 1 defendant properly complains of inadmissible hearsay. What an officer had related to him by witnesses about the event shortly after the stabbing was not part of the res gestae, as the state contends. Nonetheless, I concur in the affirmance of this conviction believing that there was insufficient prejudice to warrant a reversal.


author: SUMMERS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Harry J. TYLER.
    No. 61402.
    Supreme Court of Louisiana.
    June 19, 1978.
    Clifford Cardone, 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.
   SUMMERS, Justice.

Defendant Harry J. Tyler was charged by bill of information with one count of armed robbery and two counts of second-degree murder. He waived trial by jury. Evidence was heard on March 8 and 9, 1977. When the State and the defense rested, the trial judge took the case under advisement. On June 13, 1977 the trial judge rendered his judgment, finding defendant guilty as charged on the armed robbery count, not guilty of the first second-degree murder count, and guilty as charged of the second attempted second-degree murder count. Thereafter defendant was sentenced to serve twenty years in the custody of the Department of Corrections.

On this appeal the defendant asserts his right for appellate review of the record for “an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.Pro. art. 920. Although we find no errors warranting reversal of this conviction and sentence, the Court is concerned about the three-month delay between the taking of evidence and the announcement of the judgment. La.Code of Crim.Pro. art. 765. The judgment is a part of the “trial” in a bench trial just as the verdict is part of the “trial” in a jury trial. It appears doubtful that a criminal trial can properly be protracted over such a time span with a three-month interval between essential steps in the normal order of trial. Id. art. 765(8). Nevertheless, the law presumes the regularity of judicial proceedings. La.Rev.Stat. 15:432. Therefore, in the absence of an objection or a showing of prejudice, there is no ground for reversal of this conviction.

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

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I subscribe to the majority opinion in this case because it is correct as a matter of law and in keeping with the procedure and customs of this Court under which a very restrictive appellate review is made when a defendant simply asks this Court to review the record for errors discoverable by a mere inspection of pleadings and proceedings and without inspection of the evidence. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975). The fact that the majority has reviewed only the third assignment of error is in keeping with our practice of reviewing in non-capital cases only those assignments which are argued by counsel in brief or oral argument because defense counsel in this case did not argue the first two errors he had formally assigned.

Nevertheless, I believe that defense counsel in this case made a grave error in failing to argue his first assignment which concerned the failure of the trial judge to grant his motion to quash the information because of improper joinder of offenses. Perhaps the merits of that assignment could still be reviewed in an application for writ of habeas corpus on the basis of a denial of due process rights through his being forced to face these unrelated charges in one trial, or on the basis of incompetent counsel. In any case, it should be apparent to defense attorneys that the abandonment of meritorious assignments may in future stages of given litigation constitute the basis of a finding of incompetence.


text:
    STATE of Louisiana v. Tyronne PARKER and Leonard Foster.
    No. 61404.
    Supreme Court of Louisiana.
    June 19, 1978.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for Tyronne Parker.
    Dean A. Andrews, Jr., New Orleans, for Leonard Foster.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendants Tyronne Parker and Leonard Foster were charged by bill of information with armed robbery of Paulette and Frank Stewart. Parker and Foster were tried jointly before a jury, found guilty, and each was sentenced to 50 years at hard labor on each count, the sentences to run concurrently. Defendant Parker relies on twelve assignments of error for reversal of his conviction; Foster relies on one assignment.

All of the assignments are without merit.

Decree

Accordingly we affirm defendant’s convictions and sentences.

AFFIRMED.

SUMMERS, J., concurs.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Alton M. DAVIS.
    No. 61420.
    Supreme Court of Louisiana.
    June 19, 1978.

      Harold Douglas, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph E. Roberts, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

This case raises the question of whether a policeman has the right to stop a citizen for questioning merely because he is smoking a hand-rolled cigarette. We answer the question in the negative and reverse the judgment of the trial court for the reasons hereinafter assigned.

The defendant was charged with possession with intent to distribute heroin in violation of La.R.S. 40:966. After a trial by a judge he was found guilty of possession of heroin. Defendant was adjudged a multiple offender and sentenced to twenty years at hard labor without benefit of parole, probation or suspension of sentence.

Defendant’s sole contention on appeal is that the trial court erred in denying his motion to suppress certain physical evidence on the ground that it was obtained as the result of an unconstitutional search.

At approximately 10:00 a. m. on July 27, 1977 two police officers in a marked patrol car stopped at an intersection in New Orleans. The defendant, riding a bicycle, passed in front of the patrol car at a distance of about twelve to fifteen feet. The officers observed that he was smoking a hand-rolled cigarette. In order to stop the defendant for the purpose of inspecting the cigarette, the officers drove around the block and got out of their car as he approached. Apparently there were no obstructions to the officers’ view of the defendant because they testified that the defendant discarded the cigarette as they circled the block. Although the defendant no longer had the cigarette, the officers accosted him demanding to know where it was. They testified that at this point they detected the odor of marijuana on the defendant. The defendant denied having such a cigarette and the officers were unable to find it in the area. The officers testified that after they questioned the defendant for about three minutes he became “irate,” raised his arms over his head, and told the officers he would hurt them if they touched him. At that point the officers informed the defendant that he was under arrest for assault and ordered him to place his hands on the squad car. After a brief scuffle, the defendant was subdued and handcuffed. A search of the defendant’s person revealed several marijuana cigarettes in his front pocket and an envelope containing fifty tin foil packets of heroin in his left rear pocket. The defendant was placed under arrest for possession of heroin and marijuana, resisting arrest, and assault.

In the judicial interpretation of our constitution’s guaranty against unreasonable searches and seizures, and its federal counterpart, two principles have evolved. Before a police officer may make an investigatory stop he must reasonably suspect that the person has committed or is about to commit a criminal offense. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Sims, 350 So.2d 1189 (La.1977); State v. Smith, 347 So.2d 1127 (La.1977); State v. Kinneman, 337 So.2d 441 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Truss, 317 So.2d 177 (La.1975); State v. Saia, 302 So.2d 869 (La.1974); cf. La.C.Cr.P. art. 215.1. Before a police officer without a warrant may arrest a person he must have probable cause to believe that the person has committed a criminal offense. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); cf. La.C.Cr.P. art. 213.

The State concedes in brief that the police officers did not have probable cause to arrest or search the defendant when they made the initial stop. Nevertheless, the State contends, there was probable cause to arrest the defendant for assault after he threatened the police officers with bodily harm and raised his arms in an apparent attempt to strike one of the officers. Carrying this argument to its logical conclusion the State contends that the war-rantless search of the defendant’s person was permissible as a search incidental to a lawful arrest under the principle of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The State’s position ignores the question of the legality of the initial stop in this case, which depends on whether or not the officers had reasonable cause to suspect Davis of unlawful activity. The officers testified that they in fact suspected him of smoking marijuana. However, in order to justify their actions in stopping the defendant for questioning there must have been reasonable objective grounds for their suspicions. The record designated for our review will not support a conclusion that such grounds existed before the officers stopped the defendant.

The officers testified that Davis’ physical movements in smoking and discarding the cigarette were not furtive or suspicious. The cigarette was rolled in white cigarette paper in the same manner as a hand-rolled tobacco cigarette. Defense counsel demonstrated on cross-examination of the officers that they could not, at a distance, readily distinguish between tobacco and marijuana hand-rolled cigarettes. The officers testified that as Davis passed in front of the patrol car he held the cigarette between his thumb and index finger in his slightly cupped hand, a style of smoking they had observed among some users of marijuana. However, common knowledge and the evidence in this case do not indicate that the mere holding of a hand-rolled cigarette in this manner is a characteristic so restricted to marijuana smokers as to arouse reasonable suspicions. This is particularly so in the instant case in which the defendant, who was riding his bicycle on a public street at 10:00 a. m., reasonably could have cupped his hand to shield his cigarette from the wind.

Because the officers’ actions in stopping the defendant amounted to an unreasonable seizure, the evidence produced as a result was tainted and inadmissible. The officers’ actions in placing defendant under arrest for assault three minutes after the initial stop were direct results of the initial illegality. The causal connection between the unlawful conduct and the seizure of the evidence introduced at the trial had not become so attenuated as to dissipate the taint of the primary illegality. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1971); State v. Scott, 355 So.2d 231 (La.1978); State v. Jenkins, 340 So.2d 157 (La.1976).

For the reasons stated the defendant’s conviction and sentence are reversed, the motion to suppress is granted, and the case is remanded for a new trial in accordance with the views expressed in this opinion.

      . At the motion to suppress hearing one of the officers admitted on cross-examination that it is possible for a substance other than marijuana to emit an odor similar to that of marijuana.

      . La.Const.1974, Art. 1, § 5 provides:
      “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

      .U.S.Const. Amend. 4, provides:
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      . “ * * * In order to assess the reasonableness of [an officer’s] conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. And simple ‘ “good faith on the part of the arresting officer is not good enough.” ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ ” Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879, 1880, 20 L.Ed.2d 889 (1968) (citations and footnotes omitted).


author: SANDERS, Chief Justice. SUMMERS, Justice.

text:
    STATE of Louisiana v. Antoinette SANDIFER and Sandra Seaberry.
    No. 61421.
    Supreme Court of Louisiana.
    June 19, 1978.

      Harold Douglas, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged defendant Antoinette Sandifer with one count of forgery and defendant Sandra Seaberry with three counts of forgery, violations of LSA-R.S. 14:72. The trial judge found both defendants guilty. He sentenced defendant San-difer to one year suspended sentence and two years active probation with special conditions, and defendant Seaberry to three one-year suspended sentences, to run consecutively, and two years active probation with special conditions.

The defendants appeal. They rely on six assignments of error for reversal of their convictions and sentences.

We adduce the following context facts:

Defendant Seaberry was a salesperson for Kreeger’s Department Store. She twice forged her aunt’s name to credit sales purchases made without her aunt’s permission. On another occasion, she transferred a credit sales slip on which defendant Sandifer forged a signature.

ASSIGNMENT OF ERROR NO. 1

The State questioned Ms. Moreno, Kreeger’s security manager, about Jacqueline Seaberry, defendant Seaberry’s aunt. As Ms. Moreno began to relate their conversations concerning defendant Seaberry’s use of her account, defendants objected on the basis of hearsay. The State countered that the testimony was properly admissible as res gestae.

The court overruled the objection, and the defense now complains of the ruling.

Assuming, without deciding, that the court erred, the defendants were not prejudiced. Jacqueline Seaberry later testified as to the content of the conversations. The defense, therefore, had the opportunity to cross-examine as to the use of her account. LSA-C.Cr.P. Art. 921.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

To prove the date of defendant San-difer’s apprehension, the State showed Ms. Moreno S-6, an admission by defendant Sandifer of the theft of a pair of pants from Kreeger’s. (The State did not charge her with this offense.)

During re-cross, the defense asked her about the theft described in S-6 and the forgery charge in the present case. She answered that she was an eye-witness to both crimes. Defense counsel then inquired about defendant Sandifer’s forging someone’s name in a credit purchase of a “poncho and other articles.” The State objected on the ground of irrelevancy, and the court sustained the objection.

The defense claims that this ruling im-permissibly curtailed their right to cross-examine the witness on S-6.

The facts in the record fail to support this contention. The judge sustained the State’s objection to an inquiry concerning a forgery offense for which the defendant was not charged, not to an inquiry concerning S-6, the theft of pants. The trial judge properly ruled that questions about another offense not charged are irrelevant.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendants complain of the admission of S-3, S-5, and S-6.

When the State introduced S-3, S-5, and S-6, the defense stated, respectively, “(w)e object to that”, “(y)es, [there is an objection]”, and “(o)bjection to that”. [Tr. p. 26.]

These objections provide no basis for review. In State v. Cass, La., 356 So.2d 936 (1977), we stated:

“Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless defendant has made known to the court his objection and the grounds therefor. It is well settled that defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and to prevent or to cure the error. An objection stating no basis presents nothing for this court to review. State v. Lewis, 353 So.2d 703 (La.1977); State v. Burnette, 337 So.2d 1096 (La.1976); State v. Sosa, 328 So.2d 889 (La.1976).” [Emphasis supplied.]

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

The defendants allege that the State’s evidence was insufficient to sustain their convictions, more specifically, that the State failed to prove that the forged credit purchases were unauthorized by Jacqueline Seaberry.

The defense failed to properly raise this issue in the trial court: he neither moved for a judgment of acquittal alleging it, nor included it in his motion for a new trial. See LSA-C.Cr.P. Arts. 778 and 851. As it is raised for the first time on appeal, we may not properly treat it. See LSA-C.Cr.P. Art. 841. Moreover, an allegation based on the sufficiency of evidence presents nothing for our review since such an allegation raises only a question of fact. State v. Ashiey, La., 354 So.2d 528 (1978); State v. Johnson, La., 352 So.2d 1285 (1977); State v. Cobbs, La., 350 So.2d 168 (1977).

In any event, there is some evidence of each essential element of the forgeries charged.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

The court placed defendant Seaber-ry on active probation for two years in lieu of a prison term. As one of the special conditions of probation, he ordered her to make restitution to Kreeger’s for $1,528.67. She contends that the court erred in assessing such a large sum because restitution is calculated on the victim’s actual loss, the retail value of the merchandise, which in this case is $415.52.

Article 895.1 of the Louisiana Code of Criminal Procedure, under which the sentence was imposed, does not limit restitution to the precise value of the property lost. The trial judge is authorized to fix restitution to the victim in an amount to compensate “for his loss and inconvenience.”

The record is silent as to the trial judge’s reasons for ordering restitution far in excess of the value of the merchandise. However, the conditions of probation are subject to modification at any time. LSA-C.Cr.P. Art. 896. Hence, in affirming the sentence, we will vacate that condition of probation and instruct the trial judge to conduct a hearing to afford the defendant an opportunity to demonstrate that the amount of restitution is excessive and to fix the amount of restitution in the light of the showing made.

Subject to the remedial action indicated, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

The defendants challenge the denial of the motion in arrest of judgment and motion for a new trial. The ground of the motions was that Ms. Moreno perjured herself at trial.

The disputed testimony concerned Ms. Moreno’s efforts in investigating the forgeries, i. e. contacting the person to whom the defendants charged the merchandise and asking if she had made the purchases. At the hearing on the motions, Ms. Moreno testified that she was confused at trial between the investigation of the two forgeries in the name of Mattie Jones committed by the defendants on October 80 (for which they are charged) and a forgery in the name of Mattie Smith on November 5. Ms. Moreno’s confusion resulted in trial testimony to the effect that the October 30 forgery was on an actual account, whereas, it was on a false account.

That a witness became confused at trial and gave erroneous testimony is not a proper ground for a motion to arrest judgment. LSA-C.Cr.P. Art. 859.

However, a court must grant a new trial if

“[t]he defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; . . . LSA-C.Cr.P. Art. 851(4).

Initially, we note that defense counsel has failed to allege and prove that notwithstanding an exercise of his reasonable diligence, the error in Ms. Moreno’s testimony was not discovered prior to the verdict. See LSA-C.Cr.P. Art. 855.

The fact that the defendant committed forgery on a false charge account rather than on a real charge account, as testified at trial, would not warrant an acquittal. The writing need only purport to have legal efficacy. See LSA-R.S. 14:72. Thus, no injustice has resulted. See LSA-C.Cr.P. Art. 851.

This assignment of error is without merit.

For the reasons assigned, the convictions are affirmed. The sentences are also affirmed, but the condition of probation ordering restitution to the victim is vacated and the trial judge is instructed to conduct a hearing to determine the amount of restitution in accordance with the views herein expressed. The defendant is reserved the right for further review by application to this Court under our supervisory jurisdiction.

SUMMERS, Justice.

While I agree with this opinion in all other particulars, I cannot agree that a hearing should be held as the court declares in Assignment of Error No. 5 in the absence of a showing at sentence of an abuse of discretion by the trial judge and an objection to the sentence.

      . S-3 is Jacqueline Seaberry’s affidavit of fraud, stating that she did not make the purchase or authorize anyone to do so. S-5 is the October 30 credit transaction which is the subject of counts one and four. S-6 is defendant Sandifer’s admission of the theft of pants.


text:
    T. D. SPILLER, Jr. v. Peggy Mattingly HERPEL, Individually and as testamentary executrix of the Succession of Ama Spiller Mattingly.
    No. 60766.
    Supreme Court of Louisiana.
    November 4, 1977.
   In re: Peggy Mattingly Herpel, individually and as Testamentary Executrix of the Succession of AMA Spiller Mattingly, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 358 So.2d 960.

Denied.


text:
    Michael N. SMITH et al. v. DIVISION OF ADMINISTRATION.
    No. 61639.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Louisiana Department of Civil Service applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 358 So.2d 1291.

Writ granted.

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


text:
    AMFAC DRUG SUPPLY COMPANY v. William J. DRAGO, d/b/a Nottingham Pharmacy, et al.
    No. 61648.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: Amfac Drug Supply Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 358 So.2d 962.

Writ granted. Appeal reinstated.


text:
    Raymond B. GAUTREAU v. MODERN FINANCE COMPANY OF GONZALES, INC.
    No. 61738.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Raymond Gautreau applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension. 358 So.2d 980.

Writ denied.


text:
    FORTE AND TABLADA, INC. v. CITY OF PLAQUEMINE.
    No. 62350.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: City of Plaquemine applying for supervisory writs. Parish of Iberville. 358 So.2d 684.

Writ denied and stay order recalled.