author: TATE, Justice.

text:
    STATE of Louisiana ex rel. Major Field LOCKHART, Relator, v. T. N. ARMISTEAD, Superintendent, East Louisiana State Hospital, Respondent.
    No. 59665.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      R. James Kellogg, American Civil Liberties Union of La., Inc., New Orleans, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Thomas S. Halligan, A. Mills McCawley, Asst. Attys. Gen., Henry N. Brown, Jr., Dist. Atty., James S. Harris, Asst. Dist. Atty., for defendant-respondent.
   TATE, Justice.

In 1975, Lockhart was committed to a state mental institution upon a finding that he lacked mental capacity to assist his counsel in the defense of criminal charges. La. C.Cr.P. art. 648 (1975). His petition of ha-beas corpus was denied by the trial court.

We granted certiorari to consider whether Lockhart’s continued confinement by virtue of Article 648 violates due process protections afforded him by our state and federal constitutions. 345 So.2d 898 (La.1977). This proceeding raises the constitutional due process issue:

Once it has been determined that a person by reason of a permanent mental defect lacks capacity to prepare his defense to criminal charges, may the state nevertheless continue confinement or restraint of this person solely on account of such mental incapacity?

Under Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), a negative answer is required, and we order the petitioner released.

(1)

Lockhart was charged by information with simple burglary. A sanity commission appointed to examine him found “he presently lacks the capacity to understand the proceedings against him, or to assist in his defense.” In view of this finding, the trial judge committed Lockhart on July 14,1975, to the East Louisiana State Hospital at Jackson “until such time as those authorities find him capable of understanding the proceedings against him and capable of assisting in his defense.”

During the next fourteen months, Lock-hart was examined on several occasions by neurologists who determined that he suffered from atherosclerosis with cerebral infarction. In a letter to the trial judge on September 29, 1976, the hospital superintendent reported: “The damage resulting from the multiple cerebral infarcts is considered permanent and irreversible.” This affliction rendered Lockhart physically unable to communicate, and the medical staff considered it probable that he would not improve.

Despite this diagnosis, Lockhart was not released.

A petition for habeas corpus was filed in his behalf on March 9, 1977. This petition was dismissed on March 28, 1977.

(2)

. Lockhart was committed under the authority of La.C.Cr.P. art. 648 A. In pertinent part, this provides: “If the court determines that the defendant lacks the mental capacity to proceed, the proceedings shall be suspended and the court shall commit the defendant to a proper . mental institution . . . for custody, care, and treatment for as long as the lack of capacity continues.”

This provision is quite similar to an Indiana statute which was declared unconstitutional in its application, Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). The Indiana statute provided that “if the court shall find that the defendant has not comprehension sufficient to understand the proceedings and make his defense, the court shall order the defendant committed . . . ” This confinement shall end “[wjhenever the defendant shall become sane.” See Ind.Code 35-5-3 — 2 (1971).

In Jackson, the petitioner was a deaf mute who, like Lockhart, had very little communicative ability. After being charged with two robberies, he was found incompetent to stand trial and was thus committed to a mental institution. The medical evidence indicated that the possibility of his ever gaining competence was quite bleak. Jackson therefore argued that his commitment was tantamount to a life sentence, and that he was thereby deprived of his liberty without due process of law.

In Jackson, the court held that due process requires there be a reasonable relationship between the purpose behind the commitment and the nature and duration of that commitment. 406 U.S. 736-38, 92 S.Ct. 1857-58.

In holding that Jackson’s confinement denied him due process, the court stated, 406 U.S. 738, 92 S.Ct. 1858: “* * * a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.”

Measured by this constitutional standard enunciated by Jackson, Lockhart’s continued confinement clearly violates due process. Lockhart was held in a mental institution almost two years, despite the finding after one year that his condition would not improve. It is unnecessary for us to determine what time limits for commitment will comport with due process; it is sufficient to decide today that Lockhart’s confinement exceeded the “reasonable period” envisioned by Jackson.

Accordingly, we hold that the state failed to afford Lockhart due process of law, when it continued to hold him under criminal commitment long after it became clear that he would not attain competence to stand trial.

(3)

We should note that the Louisiana statute contains two additional clauses which are not in the Indiana statute, and which arguably create some time limits on the period of confinement:

(1) The final sentence of article 648 A is: “In no instance shall such custody, care, and treatment exceed the time of the maximum sentence the defendant could receive if convicted of the crime with which he is charged.” Thus Lockhart’s confinement under the order of July 14, 1975, could not have extended past 1984, whereas a commitment under the Indiana law could presumably last indefinitely if the detainee never gained the capacity to proceed.

(2) Article 648 C provides: “At any time after commitment, on recommendation of the superintendent of the institution that the defendant will not be helped by being held in custody and may be released without danger to himself or to others, the court may order the defendant released on probation. The probationer shall be under the supervision of the Department of Corrections, division of probation and parole, and subject to such conditions as may be imposed by the court.”

These two provisions do not validate continued confinement or restraint of liberty (probation subject to state supervision) of a person charged with crime, simply because of a finding of his permanent mental incapacity to assist in his defense:

The first provision permits commitment to the mental institution for the maximum sentence for the crime with which the accused is charged (but not convicted). The second provision permits the accused’s release upon probation under the supervision, of state officers (for the same extended period) upon conditions to be fixed by the court; the liberty thereby accorded is conditional and subject to state restraint.

Jackson clearly holds that, where state commitment is founded solely “upon incapacity to proceed to trial,” it can endure no longer than “the reasonable period of time necessary to determine” the probability of the accused’s attaining capacity in the foreseeable future. 406 U.S. 738, 92 S.Ct. 1858. If (as in the present case) it is determined there is no probability of such recovery, “then the state must either institute the customary civil commitment proceeding . or release the defendant.” Id.

While the two provisions mitigate the length of the confinement and permit the relaxation of it to probation, nevertheless they do not validate the present continued restraint upon Lockhart’s liberty: For no other reason than his mental incapacity to undergo trial to determine his innocence or guilt, Lockhart is still subject to state control for the maximum term of the offense with which he is charged but of which he has not been convicted.

Under Jackson, this irrational restraint on liberty offends due process, whether by actual confinement or supervised control. No reasonable relationship exists between Lockhart’s incapacity to assist his counsel and the state restraint upon his liberty for a term (9 years) of a crime (simple burglary, La.R.S. 14:62) with which he is merely charged.

By motion to dismiss this proceeding, the state argues that Lockhart’s release on parole makes moot his habeas corpus application. We disagree, and we deny the motion for the reasons above indicated.

(4)

In summary, the evidence shows that, solely on account of his incapacity to proceed to trial, the defendant was committed to a state mental institution for two years and, by virtue of this commitment, was recently released on probation (although still subject to revocation and state supervision). The evidence further indicates no substantial probability that he will ever attain the mental capacity to assist in his defense.

Accordingly, without prejudice to any right the state may have to institute civil commitment proceedings, La.R.S. 28:54 (1977), the relator is entitled to be released from any further restraint by reason of the commitment of July 14, 1975.

We hold here only that a commitment to determine mental capacity must be limited to a reasonable period. We do not reach the constitutionality of the statute, nor intimate that a commitment for a lesser period offends due process.

For the reasons assigned, therefore, the order of confinement of July 14, 1975 is terminated, as is any probation resulting from such order.

ORDER OF CONFINEMENT TERMINATED.

      . After we granted certiorari, Lockhart was in fact released on probation by virtue of this provision. The state’s contention that such release mooted this proceeding is noted below.

      . We note that, by Lockhart’s release on probation the state concedes that he is not “a danger to himself or to others,” La.C.Cr.P. art. 648 C.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Melvin EDWARDS and Vernado Mixon.
    No. 59601.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Rehearing Denied Nov. 11, 1977.

      Trudy H. Oppenheim, Marcel J. Meunier, Jr., New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Melvin Edwards and Vernado Mixon were charged by bill of information on February 6, 1975 with aggravated burglary in violation of R.S. 14:60. After a trial by jury each was convicted of simple burglary in violation of R.S. 14:62. Defendant Edwards was sentenced to serve nine years in the custody of the Department of Corrections while defendant Mixon, being found a multiple offender, was sentenced to eighteen years in the custody of the Department of Corrections. We affirm both convictions and discuss separately the respective assignments of error urged on appeal by the defendants.

ASSIGNMENTS OF ERROR NOS. 2 AND 3 (DEFENDANT EDWARDS)

In these assignments of error defendant Edwards alleges that the trial court erred when it ruled at a preliminary examination that the state was not required to divulge any specifics regarding a confidential informant which led to his arrest. Before the state is required to produce such information as an informer’s identity, however, the defendant is required to show exceptional circumstances warranting disclosure. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). In the present case no such showing has been made. Additionally, it should be noted that the preliminary examination at which this alleged error occurred was not even concerned with the defendant Edwards. Rather the preliminary examination was held for the defendant Mixon, his co-defendant. Thus, these assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 1, 4 AND 5 (DEFENDANT EDWARDS)

In these assignments of error defendant contends that there existed no probable cause for his arrest, and therefore any later identification was tainted as “the fruit of the poisonous tree.” It is well established that reasonable cause must have existed at the time of a warrantless arrest for such arrest to be valid. Article 213 of the Louisiana Code of Criminal Procedure provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer.

In State v. Marks, 337 So.2d 1177 at 1182 (1976) the test for determining when such reasonable cause exists was stated thusly:

Reasonable cause, which we have treated as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). Reasonable or probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Warren, 283 So.2d 740 (La.1973).

From the record now before us it appears that defendant Edwards did not request a preliminary examination in order to determine if reasonable, or probable, cause did exist for his arrest. However, from the record as a whole we can determine that Edwards was arrested on the basis of information provided by a “reliable” informant. We find that such information did constitute probable cause for the defendant’s arrest under the above cited authorities. It appears that the informer was quite specific as to the automobile of the suspects, their description and make-up, and their addresses. Additionally, the investigating officers knew that the same informant had supplied quite reliable information concerning burglaries on six previous occasions. Therefore, it appears that the officers directing the arrest of defendant Edwards had within their personal knowledge information which would lead a reasonable person to believe that the defendant had committed a crime. See, State v. Linkletter, 345 So.2d 452 (La.1977); and State v. Marks, supra. Therefore, as the arrest was valid it could not affect the validity of the subsequent identifications. These assignments are without merit.

ASSIGNMENT OF ERROR NO. 6 (DEFENDANT EDWARDS)

The defendant contends in this assignment that the pre-trial identification procedure was overly suggestive and amounted to a denial of due process of law. In State v. Ross, 343 So.2d 722, 727 (1977) we made the following observation in regard to alleged suggestive identification:

The test of whether an out-of-court identification was so impermissibly suggestive and conducive to mistaken identification that defendant was denied due process of law must be determined by the facts of each case. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A claimed violation of confrontation depends on the totality of circumstances surrounding it. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

See also, State v. Jackson, 337 So.2d 508 (La.1976).

In the present case we find no facts which indicate that the lineup was conducted in a suggestive manner. At the trial the state offered the testimony of the police officer who conducted the lineup, Sgt. Orin Mills, Jr. He stated that the procedure employed in the present case was no different from that of any other case. All suspects selected their own position; all were attired in a similar fashion; and, all were of a similar race and build. Each of the witnesses who were present at the lineup testified that they were seated separately during the lineup and spoke to no one until they made their identification to the police officers after the lineup. Therefore, we find that the defendant’s allegations contain no merit.

ASSIGNMENT OF ERROR NO. 7 (DEFENDANT EDWARDS)

Defendant alleges that the court erred in denying his motion for a directed verdict as there was no evidence presented at trial to prove his guilt for the crime charged. This assignment of error has no merit. Since the trial was held before July 17, 1975, Article 778 of the Code of Criminal Procedure before its latest amendment was applicable. There was ample evidence presented by the state as to the defendant’s involvement in the crime. The trial judge thus properly allowed the ease to go to the jury. And this Court can only reverse the conviction if there is no evidence of the crime or an essential element thereof. State v. Credeur, 328 So.2d 59 (La.1976). The state placed on the witness stand four witnesses [Mrs. Mitchell, Mr. Mitchell, Troy Peters, and Wilbert Delaney] who positively identified all three defendants [some witnesses only identified a few of the defendants] as the persons involved in the crime. Therefore, the trial judge correctly denied defendant’s motion for a directed verdict for acquittal.

Defendant Vernado Mixon offers the following assignments of error as the basis for the reversal of his conviction:

ASSIGNMENT OF ERROR NO. 1 (DEFENDANT MIXON)

In this assignment of error defendant Mixon contends that he was unrepresented by counsel during the pretrial hearings on motions to suppress the search warrant, the evidence, and the identification. The basis for this contention is that defendant was purportedly represented at these hearings solely by a student practitioner without a supervisory lawyer in violation of Rule XX section 3 of our own Court rules. This assignment, as it concerns the motions to suppress the evidence and the search warrant, is without merit. The motion to suppress the evidence (illegal arrest) at which the defendant alleges he was unrepresented did not concern the present case. The trial court, though initially believing the hearing to be relevant to the present case, stated that it was actually directed to another case in which a co-defendant of Mixon and Edwards was involved. We likewise find no prejudicial error to have been committed in regard to the “Motion to Suppress the Search Warrant,” for the evidence purportedly seized under the warrant was not introduced at trial. Furthermore, it is contended by the state that no evidence prejudicial to the defendant was even obtained as a result of the warrant.

The defendant’s allegation regarding the Motion to Suppress the Identification presents a more difficult issue. The hearing on this motion was directly applicable to the present case and testimony concerning the identifications was subsequently introduced at the defendant’s trial. Therefore, whatever prejudice should be found to have resulted by such actions are properly complained of by defendant Mixon.

With respect to this matter we initially find that defendant was represented by counsel. The transcript of that hearing and the court’s minute entries for that day indicate that defendant Mixon was represented by a student practitioner and a qualified attorney, Barry Viosca. Based upon this determination we find no merit in defendant’s claim that his constitutionally protected right to counsel was offended. On the other hand we have found in the record a violation of our Court Rules. This violation is the failure to secure written consent forms from defendant Mixon authorizing the student practitioner to appear in his behalf. Nothing appears in the record to evidence such consent or acknowl-edgement. Such a violation does indeed give us concern. We realize that the practice authorized by Rule XX has been a great aid to the training of law students and to defendants who would otherwise be unable to secure legal aid. On the other hand compliance with the rule is required if the program is not to be jeopardized. Such a violation of our rules is not a violation of a statutory or constitutional right. It might, however, in a given case amount to reversible error because “prejudicial to the substantial rights of the accused.” La.C.Cr. Pro. art. 921.

In the present case we are unable to find, nor does the defendant show, any prejudice due to this violation of our rules. Therefore, though we might decide differently in another case, we find in the present case no reversible error resulting from this violation of our rules.

ASSIGNMENTS OF ERROR NOS. 2 AND 3 (DEFENDANT MIXON)

Defendant Mixon contends in these assignments, just as defendant Edwards did in his assignment of error number seven, that the trial court erred in denying his motion for a directed verdict. As noted earlier the judge did have such authority as the trial of the defendant took place prior to the latest amendment to Article 778 of the Code of Criminal Procedure. However, we can not say that in this case there was no evidence of the crime or an essential element thereof. The defendant was identified by at least two of the witnesses as being one of the suspects. We therefore find no error in the trial court’s denying the defendant’s motion for a directed verdict.

For these reasons we affirm the conviction and sentence of each defendant.

SUMMERS, J., concurs in result.

      . A third defendant was also charged and convicted in the same manner as the present defendants. This third defendant, Arthur Cross-land, is not discussed herein as he has not appealed the conviction.

      . It should also be noted that in addition to the lineup identifications four witnesses also made in-court identifications of the defendant. These identifications arguably were based on grounds independent of the pre-trial lineup as two of the witnesses were with the defendants for one and one-half to two hours and the other two witnesses viewed the defendants for approximately one-half hour.

      . This section provides as follows:
      Section 3. Under such law school sponsored clinical instruction plan an eligible law student may appear in any court or before any administrative tribunal in this state on behalf of the state, any political subdivision thereof, or any indigent person if the person on whose behalf he is appearing has indicated in writing his consent to that appearance and the supervising lawyer has also indicated in writing approval of that appearance, in the following matters:
      (a) Any civil matter in which a fee is not provided for or could not be reasonably anticipated by contract, statute, or otherwise.
      (b) Any criminal matter in which an indigent defendant does not have the right to the assignment of counsel under any constitutional provision, statute, or rule of this court. In such cases the supervising lawyer is not required to be personally present in court if the person on whose behalf an appearance is being made consents to his absence.
      (c) Any criminal matter in which the defendant has the right to the assignment of counsel under any constitutional provision, statute, or rule of this court. In such cases the supervising lawyer must be personally present throughout the proceedings and shall be fully responsible for the manner in which they are conducted.
      (d) An eligible law student may also appear in any criminal matter on behalf of the state with the written approval of the prosecuting attorney or his authorized representative and of the supervising lawyer. Insofar as practicable, the legal services of law students in criminal practice shall be divided equally between the prosecution and defense.
      (e) In each case the written consent and approval referred to above shall be filed in the record of the case and shall be brought to the attention of the judge of the court or the presiding officer of the administrative tribunal.

      . The motion to suppress the evidence was directed to evidence ostensibly seized by virtue of an illegal arrest. The motion styled as a “Motion to Suppress the Search Warrant” was actually a motion to suppress evidence seized by virtue of an allegedly illegal search warrant, the attack being upon the legal authority of the magistrate.

      . At page twenty-two of the Transcript of the hearing on the Motion to Suppress the Evidence the trial judge made the following statement:
      This Motion to Suppress applies not to case 247-393, but to case 247-^29, which are defendants Arthur Crossland, Roger Butler and Andrew Johnson.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. David Lynn ALEXANDER and Harry Junius Granger.
    No. 59585.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Rehearing Denied Nov. 11, 1977.

      Gerald Theriot, New Iberia, J. Michael Small, Gravel, Roy & Burnes, Alexandria, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State indicted the defendants, David Lynn Alexander and Harry Junius Granger, with the armed robbery of Louis Gladu, a violation of LSA-R.S. 14:64. A jury found both guilty as charged. The court sentenced each to ninety-nine years at hard labor without benefit of probation, parole, or suspension of sentence.

The defendants appeal. They rely on eighteen assignments of error for reversal of their convictions and sentences. Alexander specifically abandons Assignment of Error No. 3 in brief. Granger failed to brief or argue his Assignments of Error Nos. 1, 2, and 3. Therefore, we consider them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

Following a pre-arranged plan, the defendants and four accomplices drove in separate cars to the Hasty Mart, a convenience store, for the purpose of robbery. All six entered but separated in the store. The owner, Louis Gladu, came from behind the counter and spoke with Alexander. Alexander pulled a gun from his waistband and shot Mr. Gladu. As he fell, Alexander shot him again. Before leaving the store, they rifled the cash register.

ASSIGNMENT OF ERROR NO. 1 (ALEXANDER)

The defendant complains of the court’s refusal to require the State to provide him with the substance of any oral inculpatory statement, as requested in his Bill of Particulars. He concedes that the law prohibits the defense from discovering oral confessions or inculpatory statements. However, he argues that the same factors requiring disclosure of written inculpatory statements should compel discovery of oral ones.

In State v. Watson, La., 301 So.2d 653 (1974), we rejected a similar contention. Therein we stated:

“Defendant argues, however, that the rule which allows the defendant to discover written confessions should be extended to include oral confessions. This court has consistently refused to extend this rule which was first announced in State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945). Discovery by defendant in criminal cases is greatly restricted. In State v. Dorsey, supra, the court realized that it was in effect creating an exception to the rule that the defendant is not allowed to discover the evidence on which the prosecution bases its case. The court specifically limited the holding to a written confession by the accused.
tt ‡ * *
“Pretrial inspection of evidence, even of confessions, is not a question of constitutional proportions. There is no statute requiring the production of ‘oral confessions.’ Probably for the reason that the management of a scheme requiring such production would be difficult and complicated, Louisiana courts have consistently refused to extend the rule for production to oral statements of the accused.” [Citations deleted.]

We conclude that the trial judge properly refused the defendant pre-trial discovery of any oral inculpatory statements.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2 (ALEXANDER)

The defendant alleges that the trial court erroneously denied him pre-trial inspection or copies of confessions made by others implicated in the offense. He admits that Louisiana law precludes a defendant from discovering such statements. However, he urges us to adopt an exception to this rule when the State grants immunity to those who confessed or were implicated in the crime. Here, the State granted immunity to Herbert John Derouen, a co-indictee, and Mary Arceneaux, one implicated.

That the State granted a person charged with or implicated in the crime immunity is inconsequential to the pre-trial discovery rights of the defense. When that person testifies at trial (as they did here), they become witnesses, and under our jurisprudence, a defendant is also denied discovery or pre-trial inspection of a witness’s statement. State v. Ball, La., 328 So.2d 81 (1976); State v. Rose, La., 271 So.2d 863 (1973); State v. Gray, La., 286 So.2d 644 (1973). See LSA-R.S. 44:3.

Thus, we conclude that the trial court’s ruling which denied the defendant pre-trial access to confessions of others implicated in or charged with the offense was proper.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 4 (GRANGER)

In the presence of the petit jury venire, but prior to any voir dire questioning, the following exchange occurred:

“BY THE COURT: Are you ready to proceed?
“BY [ASSISTANT DISTRICT ATTORNEY]: Yes, your Honor. The State is ready to proceed in case Number 26375, State of Louisiana versus David Lynn Alexander and Harry Junius Granger. There are other defendants, however, at this time the State elects to proceed against those two named defendants only, and we elect to proceed with the trial of the armed robbery Indictment, under the authority of Article 61 and 704 of the Code of Criminal Procedure. And at this time we ask that the remaining defendants, and remaining charges be refixed for November the 8th, 1976, at ten o’clock.” [Emphasis supplied.] [R. p. 542.]

By this remark, the assistant district attorney announced the defendants and charges to be tried that day, and those to be severed and tried at a later date. This information was essential to the court’s understanding of the proceedings, since the indictment charged six men with the offense to be tried, armed robbery.

The defendants contend that the assistant district attorney’s statement of “remaining charges” is an impermissible reference to another crime under Louisiana Code of Criminal Procedure Article 770.

That article sets forth the requisites for a mandatory mistrial. It provides in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
“(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; ” [Emphasis supplied.]

Louisiana Code of Criminal Procedure Article 774 confines the scope of argument “to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” The State’s remarks lie outside the ambit of Article 774. In our opinion, this comment was not argument: it was preliminary explanation, essential to orderly trial procedure. Neither do we find that the remark occurred during trial, since the State had not yet called the first prospective juror for examination. LSA-C.Cr.P. Art. 761. Thus, we hold that the very terms of Article 770, our mandatory mistrial provision, render it inapplicable to the instant case.

However, a mistrial may be ordered when prejudicial conduct in the courtroom makes a fair trial impossible. LSA-C.Cr.P. Art. 775. The court should declare a mistrial only when unnecessary prejudice results to the accused, since mistrial is a drastic remedy. State v. Governor, La., 331 So.2d 443 (1976), and the cases cited therein. This determination lies within the sound discretion of the trial judge and will not be disturbed absent an abuse of that discretion. State v. Haynes, La., 339 So.2d 328 (1976).

The defendants’ allegation that the comment indicated that they were charged with other crimes is a strained interpretation of the comment. We believe that the phrase “and remaining charges” refers to the preceding phrase “the remaining defendants.” Based on this interpretation, we conclude that the State did not comment upon the defendants’ other crimes.

Moreover, assuming that it was a reference to other crimes, we do not believe any prejudice resulted. Throughout the trial, the State introduced evidence of the murder of Mr. Gladu during the armed robbery. As this murder and the armed robbery formed “one continuous transaction,” evidence of the murder was admissible as res gestae. LSA-R.S. 15:448.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 5 (GRANGER)

The defendants aver that the trial judge unduly restricted the voir dire examination of Mrs. Suire, a prospective juror.

During the State’s questioning, Mrs. Suire stated that she could decide the case based solely on the evidence, that she would apply the law to the evidence as instructed, and that she could be a fair and honest juror. However, in responding to the defense’s questions, she took a contrary position and stated that she could not be totally fair. Because of this discrepancy, the court questioned her. After some explanation by the judge, she answered that she could set aside all prior impressions, and could render an impartial verdict according to the law and evidence. When the judge denied the challenge for cause and tendered her to defense counsel, the following occurred:

“BY [DEFENSE COUNSEL]: Mrs. Suire, when the Court asked you questions, you are of course obligated to answer honestly. On the other hand, you don’t have to answer because you think the Judge might want a particular answer, and if because of any fact you feel that your judgment would be affected by something’s that’s happened in the past, you can admit it without getting in any trouble.
“BY THE COURT: [Defense counsel], are you again going into the same things we have covered in the questions the Court has asked of this prospective juror?
“BY [DEFENSE COUNSEL]: I intended to, yes, sir.
“BY THE COURT: No. Well, that’s not permissible. I have questioned the witness at length about this matter. I have determined from her answers that she’s willing to be an impartial juror in this case. I’m not going to permit you to go back into that.” [R. p. 975.]

When he continued his examination of Mrs. Suire, defense counsel immediately posed the following question to her:

“Mrs. Suire, whether we touched on it, or whether we haven’t, is there any reason which would prevent your being totally fair and totally impartial to both sides in this case? Whether we’ve mentioned it or not? Is there anything that would prevent that?” [R. p. 984.]

Mrs. Suire answered negatively.

The scope of voir dire examination lies within the sound discretion of the trial court. LSA-C.Cr.P. Art. 786. In State v. Scott, La., 307 So.2d 291 (1975), we stated:

“A ruling by the trial court in connection with counsel’s conduct of voir dire examination should not be disturbed by a reviewing court as long as the trial court has allowed counsel a wide latitude in examining jurors and has exercised a liberal discretion in delimiting the scope of the inquiry. See State v. Jones, 282 So.2d 422 (La.1978).”

In reviewing the scope of voir dire, this Court must consider the examination as a whole, or at least the entire record of examination of the prospective jurors during which defense contends such prejudicial curtailment occurred. State v. Roach, La., 338 So.2d 621 (1976).

The voir dire examination in the present case comprises nearly 750 pages and spans approximately 3V2 volumes of testimony. The court, assistant district attorney, and defense counsel questioned Mrs. Suire as to her fairness as a juror. As the voluminous record indicates, the trial judge afforded defense wide latitude in his voir dire. The ruling complained of merely prohibited repetitious questions by defense counsel on the subject of a challenge which had previously been denied. We hold that the court’s ruling was a reasonable limitation upon counsel’s examination, and a permissible exercise of the court’s discretion. See State v. Landry, La., 316 So.2d 738 (1975); State v. Square, 257 La. 743, 244 So.2d 200 (1971), vacated as to death sentence only, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), compliance with the mandate, 263 La. 291, 268 So.2d 229 (1972).

In any event, despite the trial judge’s ruling, counsel again asked Mrs. Suire about her fairness as a juror and received an answer indicating her impartiality. Under these' circumstances, we find no prejudice. See State v. May, La., 339 So.2d 764 (1976).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 6 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 6 (GRANGER)

The defendants challenge the trial court’s ruling which sustained a State objection that Captain Horace Comeaux’s testimony was inadmissible as opinion evidence.

The factual basis of Comeaux’s testimony is as follows: Jerry Paul Francis told him that he perpetrated the armed robbery. However, Francis later recanted that confession. He explained that one of the defendant’s family bribed him to admit to the crime.

The objection arose as follows:

“BY [DEFENSE COUNSEL]:
Q. Right. And even though he was confessing to something that could get him ninety-nine years he was going to do it for money. At least that’s what he said [when] he withdrew the confession. Is that correct?
“A. Yes, sir.
“Q. Did you ask him where he was going to spend that money?
“A. No, sir, I didn’t. I didn’t ask.
“Q. Well, he was charged with other bank robberies; he was admitting to a robbery; does it seem peculiar to you that somebody would admit to a ninety-nine year offense —” [Emphasis supplied.] [R. p. 1374.]

A witness may not testify “as to any impression or opinion that he may have.” LSA-R.S. 15:463.

The question posed solicited Comeaux’s ideas on Francis’ motive in confessing. Clearly, this is inadmissible as opinion testimony. State v. White, 178 La. 98, 150 So. 843 (1933); State v. Metoyer, 162 La. 287, 110 So. 424 (1926).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 7 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 7 (GRANGER)

The defendants allege that the State’s notice of its intention to use incriminating statements is deficient, pointing to the lack of details or a description of the statement.

The State described the statement as follows:

“By the defendant, David Lynn Alexander, to one Andrus Wilson, on April 10, 1976, while both parties were confined in the Acadia Parish Jail, Crowley, Louisiana.”

The State must advise the defendant of its intent to use a confession or inculpatory statement at trial. This notice must be in writing and tendered prior to the State’s opening statement. LSA-C.Cr.P. Art. 768. In State v. Sneed, La., 316 So.2d 372 (1975), we interpreted the intent of Article 768 as follows:

“ . . . that the state must give sufficient notice of each confession or inculpa-tory statement it intends to use, with sufficient specificity as to date or occasion and as to persons to whom given as to afford adequate notice sufficient to permit the defendant a fair opportunity to meet the issue.”

The notice need not include the details, description, or content of the statement. State v. Sneed, supra.

The notice given in the instant case is legally sufficient. It identified the person to whom Alexander made the statement, and the relevant date and location of the statement. Such information apprised him of the nature of the statement to enable him to establish a defense as to that issue.

Assuming arguendo, that the notice was unsatisfactory, we find that its inadequacies created no prejudice, for the incul-patory statement which was the subject of the notice was never admitted into evidence. See LSA-C.Cr.P. Art. 921.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 8 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 8 (GRANGER)

The defendants contend that the State improperly introduced evidence of an inculpatory statement Alexander made to Andrus Wilson during its rebuttal. They allege that State v. Turner, La., 337 So.2d 455 (1976), requires the State to offer this evidence during its case-in-chief.

The State did not introduce Alexander’s inculpatory statement during its case-in-chief. In presenting its case, the defendant Alexander testified that he did not rob the Hasty Mart or shoot Mr. Gladu. He also denied telling Wilson that he robbed and killed Mr. Gladu. However, he admitted that any conversations he had with Wilson were “free and voluntary.”

In rebuttal, the State called Wilson. He testified as follows:

“BY [ASSISTANT DISTRICT ATTORNEY]:
“Q. What did he tell you about [the crime]?
“A. About it? Well, he just told me, you know, that — so they charged him with it.
“Q. Did he tell you that he had done it?
“A. Sir?
“Q. Did he tell you about how he did it?
“A. How he did it?
“Q. Yes.
“A. (Witness shakes head negatively)
“Q. Are you going to answer the question?
“A. Well-well, no, man. I — really—I not testify on nobody. So I not — I not going to tell you about it.” [R. p. 1685.]

Noting that Wilson had a “change of heart after coming into the courtroom,” the State excused him.

The defendants’ allegation that the State improperly introduced Alexander’s inculpa-tory statement has no factual basis. As shown by Wilson’s testimony above, the statement was never introduced into evidence. Thus, the argument lacks merit.

Assuming that Wilson testified as to the contents of the statement, we hold that the trial court properly admitted it. In State v. Turner, supra, we explained the relevant rules on the introduction of evidence in the State’s rebuttal as follows:

“The state may not reserve part of its case-in-chief for rebuttal testimony, after the defense has put on its case and when it can no longer present evidence to rebut the state’s case. This is contrary to statute, to ancient jurisprudence, and to rules of fair play.
“In State v. Monroe, 205 La. 285, 17 So.2d 331, 332 (1944), we noted: ‘Rebutting evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party.’ (Italics [theirs].) Again, in State v. Smith, 120 La. 530, 532, 45 So. 415 (1908), we noted that rebuttal evidence is ‘evidence which has become relevant or important only as an effect of some evidence introduced by the other side.’ ” [Citations omitted.]

Further, we recognized the following situation in our second footnote:

“Of course, a confession or an inculpatory statement may be independently admissible in rebuttal, such as being proof of a prior contradictory statement if the accused takes the stand in his defense and denies having made it. State v. Scott, 320 So.2d 538 (La.1975).”

This Court concludes that this latter rule governs the admissibility of the inculpatory statement in this case. The defendant Alexander’s denial of making the inculpatory statement and denial of any implication in the crime are facts which the State may rebut. State v. Brooks, La., 294 So.2d 503 (1974), and the cases cited therein. See State v. Watkins, La., 340 So.2d 235 (1976). At trial, the State offered and the court accepted Wilson’s testimony for impeachment purposes only. The State introduced sufficient evidence during its case-in-ehief to carry its burden of proof; it did not use this statement to prove its case. See State v. Hatter, La., 338 So.2d 100 (1976).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 9 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 9 (GRANGER)

The defendants assert that the court erroneously sustained the State’s objection to the introduction of 215 8" X 10" bank camera photographs as being irrelevant. These photographs depict Jerry Paul Francis and Preston Demouchet committing a bank robbery in Parks, Louisiana, two months after the instant robbery occurred. They argue that the photographs support their theory that Demouchet, Roy, and Francis actually perpetrated this armed robbery.

We pretermit a conclusion as to the relevancy and the admissibility of these photographs. The record indicates that Captain Comeaux described the evidence reflected in the photographs to the jury: that De-mouchet and Francis robbed a Parks bank. Hence, we hold that the testimony describing the facts depicted in the photographs cured any error, if any, in the court’s exclusion of the photographs. LSA-C.Cr.P. Art. 921; State v. Cox, 218 La. 277, 49 So.2d 12 (1950); State v. Poe, 214 La. 606, 38 So.2d 359 (1948). See also State v. McGuffey, La., 301 So.2d 582 (1974).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 10 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 10 (GRANGER)

The defendants complain of the court’s ruling which sustained the State’s objection to their offering a document styled “Disclosure by State.” Prior to trial, the State apprised the defense of the history of the gun used in the armed robbery in this document.

When the judge sustained the State’s objection, defense counsel stated “Yes, your Honor.” [R. p. 1680.] Immediately thereafter, he offered another item into evidence.

We conclude that the defense has improperly presented these arguments and alleged error for our review. LSA-C.Cr.P. Art. 841; State v. Charles, La., 326 So.2d 335 (1976). In Charles, supra, we explained:

“In these assignments defendant contends the trial court erroneously sustained the state’s objections to cross-examination questions asked by defendant’s counsel. On these occasions, although defendant did not expressly object, the court was necessarily aware of the action which defendant desired the court to take, viz., to overrule the state’s objection and allow him to put the questions to the state’s witness. However, defendant’s counsel neither complained of the court’s ruling nor apprised the court of the grounds upon which he was entitled to ask the questions. Instead, he apparently acquiesced in the court’s ruling by proceeding with his cross-examination along a different line of questioning.
“Essentially, Article 841 requires a party to apprise the court of an occurrence that the party contends is an irregularity or error as well as the basis for his contention. Since defendant did not comply with the statute he may not complain after verdict of the occurrences alluded to in these assignments of error. This rule is necessary to promote judicial efficiency by providing an adequate opportunity for the recognition and correction of errors during trial. State v. Marcell, supra [320 So.2d 195 (La.)].”

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 11 (ALEXANDER)

ASSIGNMENT OF ERROR NO. 11 (GRANGER)

Both defendants filed motions for a new trial which the trial court overruled. They now challenge the denials.

Alexander’s motion urges that the trial court’s ruling on his objections prejudiced him, and alternatively, that the ends of justice demand a new trial. Since we have heretofore determined that his objections have no substance, we conclude that his motion based on these objections is without merit. In addition, we dismiss his alternative ground because the contention that the ends of justice require the granting of a new trial presents nothing for our review. State v. Clark, La., 325 So.2d 802 (1976). Thus, we hold that the trial judge properly denied his motion for a new trial.

In treating Granger’s motion, we similarly find that the court correctly denied it. He alleges that the verdict is contrary to the law and evidence since no one positively identified him as a participant in the armed robbery, and that the State failed to prove that Granger or his accomplices stole anything of value. Further, he avers that the objections made at trial show prejudicial error.

As we have previously decided that defense’s objections are without merit, this ground in his motion is also without merit. His remaining allegations raise an evidentiary issue, that is, if the evidence supports the conviction. Such a contention does not raise a reviewable question of law on appeal unless there is a total lack of evidence to prove the crime or an essential element thereof. State v. Perkins, La., 337 So.2d 1145 (1976); State v. Williams, La., 310 So.2d 513 (1975). A review of the record convinces us that there is some evidence of the crime and its essential elements. Witnesses testified that the defendants planned the robbery of a store; that a customer paid cash for purchases shortly before the defendants entered; that the defendants entered the store and exited, running; that minutes after they fled, another customer discovered the cash register open containing only a few nickles and pennies, with the spring clips in the upright position.

These assignments of error are without merit.

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

DIXON, J., concurs.

      . The indictment also charged John Nelson Collins, Sr., Ronald Earl Miller, Herbert John Der-ouen, and Rene Jackson. Thereafter, the State granted Derouen immunity and dismissed the charge against Jackson. Both Miller and Collins pled guilty to accessory after the fact. See LSA-R.S. 14:25 and 64.

      . Throughout we refer to his formal assignments of error numbers filed in the trial court, rather than his argument numbers in his brief.

      . In brief, the defendant Alexander urges an additional ground concerning the propriety of the trial court’s denial of his challenge for cause of Mrs. Suire. However, this alleged error is improperly presented because counsel failed to voice a contemporaneous objection to the court’s ruling. LSA-C.Cr.P. Art. 841.

      . The record does not indicate the full content of this statement. For purposes of discussion, we will assume that the statement also implicated Granger, thereby giving him standing to contest the statement’s admissibility in rebuttal.


author: PER CURIAM.

text:
    STATE of Louisiana v. Dennis Ray WASHINGTON.
    No. 59869.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Rehearing Denied Nov. 11, 1977.
    Tommy J. Adkins, Ruston, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., O. L. Waltman, Jr., E. J. Bleich, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    John VALLIEN v. George Warren PRATHER.
    No. 60490.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: John Vallien applying for certiora-ri, or writ of review to the Court of Appeal, Third Circuit, Parish of St. Landry. 348 So.2d 229.

Writ denied.


text:
    STATE of Louisiana v. Charles Ray SPEARS.
    No. 60361.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Charles Ray Spears applying for Supervisory Writ of Certiorari.

Writ denied.


text:
    Mrs. Bertha SANCHEZ v. AETNA LIFE INS. CO.
    No. 60781.
    Supreme Court of Louisiana.
    Oct. 21, 1977.
   In re: Dolores Jacobson applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 350 So.2d 680.

Application not considered. No application for rehearing made in the court of appeal. La.C.Civ.P. art. 2167 (1960). Amendment of art. 2166 by Act 179 of 1977 not effective until January 1, 1978 (Section 4, Act 179).


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. David M. BUCHANAN v. Charles FOTI, Sheriff.
    No. 60939.
    Supreme Court of Louisiana.
    Nov. 3, 1977.
   In re: David M. Buchanan applying for remedial writs.

Writ granted. Prerevocation hearing ordered forthwith. L.C.Cr.P. art. 899(E). It is further ordered that applicant be admitted to bail until the prerevocation hearing; thereafter he may be allowed bail within the court’s sound discretion. L.C.Cr.P. art. 899(C).

SANDERS, C. J., and MARCUS, J., dissent from the order insofar as it grants the relator bail.

SUMMERS, J.,

is of the opinion that applicant is in detention until the prerevocation hearing at which time a decision is to be made whether his detention shall continue. If the prerevocation hearing results in a ruling that his detention should continue, he is not entitled to bail. Otherwise he is released from detention without bail until final revocation hearing determines whether his probation shall be revoked or that he be continued on probation.


text:
    STATE of Louisiana ex rel. Junious JONES v. Ross MAGGIO, Jr., Warden, La. State Penitentiary.
    No. 60503.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Junious Jones applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. No merit in the application. State v. Sawyer, La., 350 So.2d 611.


author: DOMENGEAUX, Judge. WATSON, Judge, PER CURIAM.

text:
    LOUISIANA RESOURCES COMPANY, Plaintiff-Appellee, v. Matilda Gray STREAM, Defendant-Appellant.
    No. 6150.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Camp, Carmouche, Palmer, Carwile & Barsh by A. J. Gray, III, Lake Charles, for defendant-appellant.
    Hargrove, Guyton, Ramey & Barlow by Ray A. Barlow, Shreveport, and Michael R. Mangham, and Jones, Jones and Alexander by Jerry G. Jones, Cameron, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Louisiana Resources Company, is engaged in the business of piping and marketing natural gas for the purpose of supplying the public with that resource. Pursuant to its right of expropriation granted by LSA-R.S. 19:2, it filed this expropriation suit in November, 1976, to take a right-of-way or servitude across a tract of land owned by defendant, Matilda Gray Stream. The purpose of the taking is the construction of an eight-inch natural gas pipeline.

Defendant filed an exception of no cause of action. The case as to all issues except compensation was submitted to the district judge on a written stipulation of the parties. The only issues before the district judge were: (1) the public purpose and necessity of the taking and (2) whether the route should be altered so as not to cross defendant’s property.

The district judge overruled the exception of no cause of action, finding that the taking was for a public purpose and was necessary, and that the route across plaintiff’s property need not be altered. Defendant has taken this appeal. We affirm.

The pipeline in question is a lateral one which will be attached to a main pipeline that is approximately 100 miles long, running from the western edge of Cameron Parish to the northeast corner of Vermilion Parish. It parallels the coastline in Cameron Parish three to five miles inland to an area known as Crab Lake, and at Crab Lake it turns northeasterly and goes to Cow Island. There it connects with other pipelines. The gas thus transported is delivered and disposed of intrastate.

On appeal the parties have stipulated to the public purpose and necessity of the taking. The sole issue submitted to us therefore, is the right of the expropriator to choose this route across defendant’s property when another route could be taken which avoids her property altogether.

The trial judge in his written reasons for judgment quite ably disposed of this issue. We quote him in part:

The defendant next contends that the plaintiff does not have the ‘right to take’ her land for a pipeline which could be constructed completely on the neighboring land, and which is owned by the operator of the well which is the source of the supply [Mecom]. The defendant contends that this line should be located over lands belonging to those who have a direct interest in the company that supplies the gas. It [sic] further contends that the increased costs of construction of the proposed line is not relevant. The defendant urges that costs will be ultimately paid by the profits received by Mecom and the plaintiff, whereas injury to the defendant would be permanently borne by the defendant with no benefits received therefrom. In substance the defendant contends that equity dictates that the line be located as it proposes on Exhibit A, attached to the stipulation.

An examination of Exhibit A reveals that the line as proposed by the plaintiff leaves the Mecom well and circumvents the open water created by Mud Lake and then turns due south to attach to the main line. The proposed route of the defendants reflects that it crosses Mud Lake, which is crescent in shape, in two places and proceeds in a general southwesterly direction intersecting the main line southwest of the Mecom well. The defendant’s proposal is 23,760 feet, while the plaintiff’s proposal is 14,256 feet of line. The difference between the two proposals is 9,504 feet.

It was stipulated in Paragraph 15 of the stipulation that Mr. Wendell Gates, an engineer qualified as an expert in the field of construction, maintenance and operation of pipelines, would testify that in his opinion:

‘(a) the route which he has selected for the proposed pipeline is the best route from an engineering and economic standpoint; and
(b) the route across lands of the owner of the gas to be transported, as shown on attached Exhibit ‘A’ is not the best route from an engineering and economic standpoint; and
(c) his reasons for not selecting the route across lands of the owner of the gas to be transported, as shown on attached Exhibit ‘A’, are that such route is longer and more expensive that the route he has selected and reduces the volume of gas which can be transported through the pipeline, because the longer the pipeline, the greater the gas pressure drop; and that, although the gas pressure drop may not present a problem from the standpoint of the present well, it could present a problem if, in the future, more gas from other wells in the vicinity was put through the pipeline.’

It is well established in the jurisprudence of this state that a delegation of the power of eminent domain gives the grantee of the power the right to determine the location and route of the improvement and of the land to be taken for it. Such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respects beyond the privilege conferred by the statute. Evidence that another route is feasible is not sufficient to show that the grantee’s selection constitutes bad faith, oppression, or abuse of power. Considering the location of this line, and the testimony of Mr. Gates, along with the jurisprudence, this court concludes that the route selected by the plaintiff should not be altered.”

The proposition that the location of property to be expropriated is within the sound discretion of the expropriator who acts reasonably and in good faith cannot be questioned. See Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 68 So.2d 901 (1953); City of Westwego v. Marrero Land & Imp. Association, 221 La. 564, 59 So.2d 885 (1952); Central Louisiana Electric Company v. Covington & St. Tammany Land and Improvement Company, 131 So.2d 369 (La.App. 1st Cir. 1961); United Gas Pipe Line Company v. New Orleans Terminal Company, 156 So.2d 297 (La.App. 4th Cir. 1963); and Texas Eastern Transmission Corporation v. Bowie Lumber Company, 176 So.2d 735 (La.App. 1st Cir. 1965).

There is no evidence herein to suggest that plaintiff has acted arbitrarily or capriciously in making its selection. Defendant is not entitled, in the absence of such proof, to have the route altered simply because she has indicated an alternative route which is physically feasible.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against defendant-appellant.

AFFIRMED.

Appendix to follow.

APPENDIX A

WATSON, J., concurs and assigns reasons.

WATSON, Judge,

concurring:

Article 1, § 4, of the Louisiana Constitution of 1974 provides that expropriation by a private entity must be for a “public and necessary purpose”. Whether a taking is for a public and necessary purpose is a judicial question. This provision was adopted after great controversy and was intended to make expropriation by private entities more difficult. See the discussions at 35 La.L.R. 10 and 21 Loyola L.R. 19.

It appears that defendant concedes the purpose is public, but it is not clear whether there is a concession that the taking is “necessary” as contemplated by the Constitution of 1974. Of course, if public purpose and necessity are both conceded, the defendant is out of court.

I think it is important to note the changes implied by the new constitutional provision.

The jurisprudence cited by the majority was decided prior to the enactment of the 1974 Constitution. The redactors of the 1974 Constitution have provided a new standard of proof “. . . considerably more onerous . . . ” for such a taking. There is no longer a presumption of necessity. Plaintiff, Louisiana Resources Company, now must show the necessity of this taking. The fact that the pipeline route chosen is “the best route from an engineering and economic standpoint” (according to stipulated testimony by plaintiff’s engineer) does not necessarily prove necessity when the fact is considered that readily available is another route across lands owned by the owner of the gas to be transported. I have doubts that the mere showing that the owner route would be more expensive is a sufficient basis on which to make a judicial determination of necessity.

I respectfully concur.

ON APPLICATION FOR REHEARING

PER CURIAM.

Defendant in applying for rehearing contends that she did not stipulate to the “necessity of the taking”. She contends that the issue was whether it was “necessary” for appellee to expropriate the land in which she has an interest, when the proposed pipeline could be constructed upon property of those receiving the benefit of the pipeline (Mecom).

Assuming arguendo that defendant did not stipulate to the “necessity of the taking” the evidence amply demonstrates such necessity. She admits that she stipulated to “public purpose and compensation.” There is a “necessary” purpose for this expropriation. It is obvious that a pipeline must be built or an existing line must be used. The record reflects and the evidence is unchallenged that there are no existing facilities to transport the gas from the Me-com well to plaintiff’s main transmission line and thereby into the intrastate market.

Having decided that this expropriation by a private entity is for a public and necessary purpose (Article 1, Section 4, Louisiana Constitution of 1974) we reiterate, as shown in our original opinion, that the trial judge was correct in ordering the expropriation across the defendant lands.

APPLICATION FOR REHEARING DENIED.

WATSON, J., adheres to the views expressed in his original concurrence.

      . The question of compensation was fixed for subsequent trial by jury, but has since been decided by stipulated judgment dated January 24, 1977.

      . Footnote by Appellate Court: Exhibit A is reproduced in the Appendix.

      . 21 Loyola L.R. 22.


author: DOMENGEAUX, Judge.

text:
    Irving THIBODEAUX, Plaintiff-Appellant, v. Ernest LANDRY et al., Defendants-Appellees.
    No. 6159.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.

      Privat & Regan by Kenneth 0. Privat, Crowley, for plaintiff-appellant.
    Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for defendants-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Irving Thibodeaux, sued Ernest Landry and Landry’s tenants, Emery and Randy Thibodeaux, to enjoin him from disturbing him in the possession of his property, and for damages associated with the alleged disturbance. The trial judge granted a temporary restraining order, but on hearing the motion for a preliminary injunction he denied that injunction. However, he reserved to plaintiff his action for certain enumerated damages. Plaintiff has appealed the denial of the preliminary injunction and the limitations imposed on his damages by the trial judge. Defendants have answered the appeal, praying for damages and attorney’s fees. We affirm in part, reverse in part, and remand.

Plaintiff is the owner of a tract of land which adjoins defendant Landry’s land on Landry’s southern border. Both tracts are used for the cultivation of rice. A fence divides their property. Directly south of the fence on plaintiff’s property lies a drainage ditch, which parallels plaintiff’s large irrigation canal. The drainage ditch was over-grown with weeds and saplings. On November 1, 1976, defendants tore down plaintiff’s fence, went onto his property, and “cleaned” out the drainage ditch with a backhoe. Dirt and debris which was removed from the ditch was placed on plaintiff’s property. New culverts were installed to facilitate the draining of water from defendant’s land onto plaintiff’s property. After the temporary restraining order issued, plaintiff removed some of the culverts.

The trial judge found that defendants had a natural servitude of drain across the drainage ditch. Civil Code Article 660 states:

“It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”

The trial court held defendants were entitled to go onto plaintiff’s property to do maintenance work on the ditch, but that plaintiff nevertheless had an action for damages for the destruction of his fence and was entitled to have the dirt and trash removed from his property.

Plaintiff cites the following errors on the part of the district judge:

(1) His failure to issue a preliminary injunction.
(2) His finding that a servitude of drainage existed.
(3) His failure to find that defendants have made the alleged servitude more burdensome.
(4) His failure to list trespass as an element of plaintiff’s damages.
(5) His assessment of one-half of the court costs against the plaintiff.

Defendants maintain in brief that there exists a natural servitude of drain under Civil Code Article 660, supra, or that they have acquired a conventional servitude of drain by ten-year acquisitive prescription as provided by Civil Code Articles 714 and 765.

The trial judge’s holding that the ditch in question was a natural servitude of drain was not erroneous. However, he did err in finding defendants were entitled to enter at will upon plaintiffs property to clean out the ditch. Our Supreme Court was last faced with this issue in Sharpe v. Levert, 51 La.Ann. 1249, 26 So. 100 (1899). The Court there stated that the proprietor of the dominant estate may not enter the servient estate at his pleasure for the purposes of digging a ditch without the consent of the owner.

Defendants cite the case of Miller v. Prairie Canal Company, Inc., 229 So.2d 752 (La.App. 3rd Cir. 1969) for the proposition that they are entitled to go onto plaintiff’s land to work on the ditch. The court in Miller stated:

“In the present case, defendant owns a canal servitude across plaintiff’s land and implicit in any servitude is the right to use it for the purposes for which it is intended. Equally implicit in this right is that its exercise does not depend upon the consent of the landowner. If defendant is required to obtain permission to go upon plaintiff’s land this would of necessity imply that plaintiff has the right to refuse permission and that, in itself, would negate the ‘right’ of servitude. LSA-C.C. Art. 772 is controlling, to-wit:
‘Art. 772. He to whom a servitude is due, has a right to make all the works necessary to use and preserve the same.’ See also LSA-CC Art. 774.”

The trial judge incorrectly cited the Miller opinion, a case which pertains to conventional servitudes of drain, as controlling in this case, which involves a natural servitude of drain. We agree with the venerable case of Landry v. McCall, 3 La.Ann. 134 (1848), which held as follows:

“Whenever the exercise of the servitude is obstructed the plaintiffs must call upon him to remove the obstructions and may compel him by legal process to do so. Had this course been pursued, it is evident that this litigation would have been prevented.
The plaintiffs have not the right to widen the bayous, as the witnesses seem to believe. This improvement, if necessary, can alone be made by the police jury, upon an adequate compensation to the defendant for the damage he may sustain thereby. Arts. 768 and 770 [now Arts. 772 and 774] of the Civil Code, upon which the plaintiffs’ counsel relies, relate exclusively to conventional servitudes. Natural servitudes are laws of vicinage and necessity, subject to different rules. Pardessus, 53, 66. . ”

Although it is arguable that the rules which govern voluntary and conventional servitudes of drain apply by analogy to the natural servitude of drain, see Yiannopoulis, Predial Servitudes, 29 La.L.Rev. 1, at 45, (1969), we believe that the natural servitude of drain is unique and is not affected by those rules. The essential nature of a natural servitude of drain is its existence without the act of man. We do not believe the redactors of the Code contemplated extensive maintenance work to be done in order for a natural drainage to occur.

This is not to say that defendants are prevented from altering their own property to facilitate the natural drain. Freestate Industrial Development Company v. T. & H., Inc., 209 So.2d 568 (La.App. 2nd Cir. 1968), as long as they do not make the servitude more burdensome on plaintiff. But without conclusive proof that the defendants have acquired a servitude of drain by prescription, or convention, they are not entitled to enter onto plaintiff’s property. See Sharpe, supra.

As the Landry case suggests and the case of Brown v. Blankenship, 28 So.2d 496 (La.App. 2nd Cir. 1946) holds, plaintiffs may be compelled by court order to clean out the ditch. We feel this course of action would be preferable to giving defendants complete freedom to enter plaintiff’s property and to alter it without any restrictions.

Defendants are not precluded from making out proof of a conventional servitude of drain acquired by prescription provided there is proper basis in the pleadings. Nor is plaintiff precluded from proving it has acquired by prescription the contrary servitude under Articles 714 and 765. See Johnson v. Wills, 220 So.2d 134 (La.App. 3rd Cir. 1969).

We stress that this is an appeal from a denial of a preliminary injunction. Plaintiff need only prove a prima facie case to receive that relief. Moorhead v. State, Department of Highways, 322 So.2d 330 (La.App. 2nd Cir. 1975). We feel that plaintiff has put on sufficient evidence to show that the drainage of water from defendant’s property into the drainage ditch cannot occur at the rate which it is now flowing without acts of man, i. e., the installation of culverts and digging. Plaintiff has also shown prima facie that the defendant’s actions have made the drain more burdensome, by directing a greater flow of water onto his property which is eroding his irrigation canal. His testimony and the testimony of his surveyor is to that effect. On the other hand, defendants have not proved at this juncture that they have more than a natural servitude of drain; therefore they are not entitled to install culverts on plaintiff’s property or to enlarge the ditch.

For the above reasons we feel that plaintiff is entitled to a preliminary injunction ordering defendants to refrain from trespassing on his property and disturbing his land. Also, in addition to the preservation by the trial court of plaintiff’s rights to enumerated damages, plaintiff’s rights to damages for trespass must also be preserved. The opportunity is reserved to defendants to prove at the hearing for a permanent injunction and for damages that, if it is properly pleaded, they are entitled to a conventional or prescriptive servitude of drain. It is also reserved to plaintiff, if properly pleaded, to prove he has acquired the contrary servitude (C.C. 714) and to prove all damages including trespass.

For the above and foregoing reasons, it is ordered that a preliminary injunction issue herein, upon plaintiff’s furnishing bond in the amount of $2,000.00, as provided for by C.C.P. 3610, directed to defendants Ernest Landry, Randy Thibodeaux, and Emery Thibodeaux, restraining, enjoining and prohibiting them from in any manner using or interfering with plaintiff’s property or removing fences, digging, erecting, or maintaining drainage structures and facilities over, across and through the above described property, and further, from directing the flow of water over the following described property:

“That certain tract or parcel of land containing 183.03 acres and being situated in the southwest quarter and the west half of the southeast quarter of Section 59, Township Ten (10) South, Range Two (2) West, Acadia Parish, Louisiana, and more fully described as beginning at the southwest corner of Section 59 and running thence N 0° iVf W 2,640.2 feet; thence N 89° 27' E 3,995.5 feet, along an existing fence line; thence S 0° 05' E 1,768.0 feet along the east line of the west half of the southeast quarter of Section 59; thence S 89° 37' W 1,338.7 feet; thence S 0° 05' E 884.00 feet; thence S 89° 37' W 1,584.2 feet along the south line of Section 59; thence N 0° 07V2' W, 1,306.6 feet; thence S 89° 49' W 1,006.0 feet; thence S 0° 7%' E, 1,292.0 feet; thence S 89° 37' W 65.0 feet to the point of beginning; SAVE AND EXCEPT a strip of land 40 feet in width running parallel with the west line of Section 59 and adjoining the east right of way limit of the public road and extending from the south line to the north line of the southwest quarter of Section 59, said strip belonging to Lovic C. Des-Ormeaux and being used as a canal right of way, all as is shown in that certain plat of survey made for Philip L. DesOrmeaux by Frank R. Lyman, Land Surveyor, dated June 4, 1974, a copy of which is attached hereto and made a part hereof,

and especially, but not limited to, the ditch approximately four feet wide and six feet deep, beginning at the western boundary of petitioner’s property, to a drainage canal approximately 2,600 feet away to the east.

This preliminary injunction is to be effective pending further proceedings in regard to the hearing for permanent injunction and damages to which plaintiff may be entitled. This case is hereby remanded for further proceedings not inconsistent with the aforegoing opinion.

The costs at trial and on appeal are assessed against defendants, Ernest Landry, Emery Thibodeaux, and Randy Thibodeaux. The costs of all further trial proceedings will be assessed at the time of the final determination of this cause and according to the tenor of the final determination.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Civil Code Articles 714 and 765 are as follows:
      Art. 714. The right of drain consists in the servitude of passing water collected in pipes or canals through the estate of one’s neighbor.
      This servitude is different from the right of drip, because the charge it imposes is more onerous.
      It is much less inconvenient to receive the rain which falls than a body of water which may carry away the land by its violence.
      The contrary servitude is the right of preventing this passage of water.
      Art. 765. Continuous and apparent servi-tudes may be acquired by title, or by a possession of ten years. The public, represented by the various parishes in this State, may also in like manner acquire a servitude by the open and public possession and use of a road for the space of ten years, after the said road or servitude has been declared a public highway by the Police Jury, provided that such servitude so acquired shall not extend beyond the width of forty feet.

      . Compare La.R.S. 33:1236(13) authorizing police juries to perform all work necessary in order to clear natural drains.


author: WATSON, Judge. PER CURIAM.

text:
    John Donaldson CAFFERY v. Clyde Allen BURNS et al.
    No. 6240.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 8, 1977.

      McBride & Brewster by Robert R. McBride, Lafayette, for defendant-relator.
    Carey D. Bearden, Bearden & Gean, Lafayette, J. Minos Simon and Kenneth W. DeJean, Lafayette, and Davidson, Meaux, Sonnier & Roy by L. Lane Roy, Lafayette, for plaintiff-respondent.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

A writ of certiorari was issued to consider a trial court judgment requiring defendant, United States Fidelity & Guaranty Company, to pay $750 to Carey D. Bearden, an attorney appointed by the court as curator ad hoc to represent defendant, Clyde Allen Burns. The payment was ordered to compensate Bearden for attendance at the taking of Burns’ deposition in Pine Bluff, Arkansas, scheduled by USF&G. The lawsuit, which is not before us on the merits, concerns an automobile-motorcycle accident in Louisiana for which plaintiff, John Donaldson Caffery, seeks damages from Burns and USF&G, alleged to be plaintiff’s uninsured motorist carrier.

In the original petition, Burns is alleged to be a resident of Lafayette Parish, Louisiana.

An attempt was made to serve Clyde Allen Burns in Louisiana, but the petition was returned without service. A notation on the citation states that Burns had moved and never returned. Plaintiff then filed a motion alleging that Burns was an absentee or non-resident and that the court should appoint an attorney to represent him. An order was entered by the trial court appointing Bearden.

LSA-C.C.P. art. 5091 authorizes the trial court to appoint an attorney at law to represent a defendant when the court “ . . . has jurisdiction over the person or property of the defendant, or over the status involved . . . ”

There is no showing of any service, seizure of property, or other acquisition of jurisdiction over Burns in the suit. There is no question of status involved. Since the trial court did not have jurisdiction over the person or property of the defendant, the curator ad hoc was improperly appointed. Ray v. South Central Bell Telephone Company, 315 So.2d 759 (La.,1975); Lafayette Insurance Company v. Weiss, 297 So.2d 681 (La.App. 4 Cir. 1974).

At the hearing on the question of whether the curator ad hoc should be paid expenses to travel to Arkansas for the deposition, the curator moved alternatively to be relieved of his appointment (TR. 69). The motion was well taken and it should have been granted. We do not reach the other issues.

It is ordered, therefore, that the writ of certiorari issued in these proceedings be made absolute, that the curator ad hoc, Carey D. Bearden, be relieved of his duties and discharged, and that the trial court fix a reasonable fee for his services prior to his discharge. The plaintiff procured the order of the trial court appointing Bearden and is therefore cast for costs associated with his appointment and with this appeal. Taxing of other costs is referred to the merits.

WRIT MADE ABSOLUTE.

ON APPLICATION FOR REHEARING

PER CURIAM.

By application for rehearing, John Donaldson Caffery, plaintiff, contends that the court erred in failing to adjudicate plaintiff’s right to the advancement of expenses for the proposed deposition of an out-of-state party. The original opinion was rendered on writ of certiorari. The writ was granted on the application of United States Fidelity & Guaranty Company to review the order of the trial court allowing a fee for the attendance at the deposition by an attorney appointed by the court to represent Clyde Allen Burns, a defendant.

Plaintiff did not apply for writs; he filed what was styled as an “answer to the application for writs” in which he urged that the trial court erred in failing to require U.S. P.&G. to pay reasonable expenses to plaintiff’s counsel.

Plaintiff s contention was not properly before this court. It is well settled that where a writ of certiorari is granted on the application of one party, another party who has not applied for writs cannot have the judgment amended or changed to his benefit. Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377 (1962); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

The application for rehearing filed by plaintiff is denied.

      . Jurisdiction was not sought under LSA-R.S. 13:3474, the non-resident motorist statute, or LSA-R.S. 13:3201 et seq., the “long arm” statute.


author: LEE, Justice, for the Court:

text:
    Arlean S. HEBERT v. Rosanne S. Hebert PACE.
    No. 49991.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Thomas J. Wiltz, Biloxi, for appellant.
    Sekul, Hornsby, Wallace & Teel, Thomas L. Wallace, Biloxi, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   LEE, Justice, for the Court:

The Chancery Court of Harrison County, Chancellor John S. Morris, presiding, entered a decree in favor of Rosanne S. Hebert Pace against Arlean S. Hebert for the proceeds of a life insurance policy insuring the life of Ellis P. Hebert. Arlean S. Hebert appeals.

The question to be decided on this appeal is whether or not an unconditional assignment of the life insurance policy to Arlean S. Hebert vested the proceeds in her to the exclusion of Rosanne S. Hebert Pace, named beneficiary in the policy.

Appellant was the third wife of the insured and was living with him at the time of his death. Appellee is a daughter by a previous marriage. Loyal American Insurance Company of Mobile, Alabama, issued its policy [five thousand dollars ($5,000) value] insuring the life of Ellis P. Hebert with appellant named as beneficiary and with the right of the insured to change the beneficiary. On August 16, 1973, the insured changed the beneficiary in said policy to appellee, Rosanne S. Hebert Pace. Thereafter, on June 20, 1975, the insured executed an instrument [See Appendix] designated as “Absolute Assignment of Title to Policy” to appellant, the instrument reciting that it was executed for valuable consideration and that it assigned, transferred, set over and conveyed to Arlean S. Hebert all the insured’s right, title and interest in and to the policy and it expressed the desire and intention of the insured to vest in Arle-an S. Hebert the absolute and unconditional ownership and title of and to the policy. After the death of the insured, appellant delivered the insurance policy and the assignment to the insurance company and made claim for the proceeds thereof. The insurance Company interpleaded the funds, and this suit resulted from such action.

The principle has been well settled in this state that where the insured reserves the right to change the beneficiary of a policy, in cases involving loans and pledges of the proceeds or value of the policy to secure the loan, the beneficiary has no vested interest in the policy proceeds until the death of the insured and that the assignee is entitled to the value or proceeds of the policy to the extent of his or her interest.

In Lamar Life Insurance Company v. Moody, 122 Miss. 99, 84 So. 135 (1920), this Court said:

“The authorities seem to be uniform that the insured may borrow money on the policy although payable to the wife and children; if the right to change the beneficiary is reserved, the insured may assign the policy at will in such cases.” 122 Miss, at 110, 84 So. at 136.

Subsequently, in Bank of Belzoni v. Hodges, 132 Miss. 238, 96 So. 97 (1923), the Court quoted from the Lamar Life Insurance Company case and approved the principle.

In 2A Appleman, Insurance Law & Practice § 1257, at 463 (1966), Mr. Appleman discussed the question now before this Court and said:

“Now if the assignment were absolute in form, conveying to the assignee the entire legal title of the insured and every interest in the policy, is it likely to assume that the beneficiary designation should remain? True, from a technical point of view, an actual change of beneficiary could be required, the assignee having the power thereafter to designate persons who can claim through him. But a new insurance is not created on a new life. The original insured is still the insured — the company does not assume the assignee’s life as the measure of its hazard. The assignee is the person who takes the benefit of the policy on the insured’s life. Therefore, with such a person designated who is entitled to the funds, it would seem a useless and foolish thing to permit a beneficiary designation to remain in full force and effect. The danger is that the assignee will assume, as would almost and thinking person, that it is unnecessary to change the beneficiary designation to himself when he has the whole interest in the policy otherwise.”

Courts of other jurisdictions have considered the question. In New York Life Insurance Company v. Hartford Accident & Indemnity Company, 181 Ga. 55, 181 S.E. 755 (1935), the Supreme Court of Georgia held that if an assignment on its face is absolute, then the assignee takes all and the beneficiary takes nothing. The instrument in that case stated that the assignment was “for value received” and that it was an “absolute assignment,” the same words which appear in the assignment now under consideration. See also Petty v. Mutual Benefit Life Insurance Company, 235 Iowa 455, 15 N.W.2d 613 (1944); Davis v. Modern Industrial Bank, 279 N.Y. 405, 18 N.E.2d 639 (1939), and Considine v. Considine, 255 App.Div. 876, 7 N.Y.S.2d 834 (1938).

If the assignee of an insurance policy, which provides the insured has the right to change the beneficiary, does not have the absolute right to the proceeds of the policy upon the death of the insured, a vain and foolish rule would apply. It is not reasonable that a person can own an insurance policy with the right to borrow money upon same to the extent of its face value or to surrender the policy for its cash value, and, because he or she did not change the beneficiary, the assignee would not be entitled to the proceeds upon death of the insured. We hold that the same principle stated in Lamar Life Insurance Company v. Moody, supra, and Bank of Belzoni v. Hodges, supra, applies to the present case and that the absolute assignment by the insured to his wife vested her with all right, title and interest in the policy together with the proceeds accruing therefrom upon death of the insured to the exclusion of the named beneficiary.

Appellant also contends that an instrument in the handwriting of the insured dated June 20, 1975, was a valid change of beneficiary to his wife, the appellant. In view of our conclusion hereinabove expressed, it is unnecessary to decide whether or not the chancellor correctly sustained an objection to the introduction of such instrument in evidence and whether or not it constituted a valid change of beneficiary.

For the reasons stated, the judgment of the lower court is reversed and judgment is rendered here for appellant..

REVERSED AND RENDERED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and BOWLING, JJ., concur.

APPENDIX

ABSOLUTE ASSIGNMENT OF TITLE TO POLICY

For a valuable consideration, the receipt whereof is hereby acknowledged, I/we hereby assign, transfer, set over and convey to Arlean S. Hebert. 238 Move Ave. Biloxi. Ms. 39532 of _, _ all my/our right, title and interest in and to Policy Number 17039 issued or assumed by the LOYAL AMERICAN LIFE INSURANCE COMPANY, INC. of Mobile, Alabama on the life of Ellis P. Hebert .

It is my/our desire and intention by this assignment to vest in said Arlean S. Hebert the absolute and unconditional ownership and title of and to said Policy.

IN WITNESS WHEREOF, I/we have hereunto set my/our hand and seal this _20 day of June . 19 75 .

/s/ Ellis Hebert Policyowner

State of County of

On this 20th day of June . A.D., 75 , before me personally appeared Ellis P. Hebert . known to me to be the identical person/s described in and who executed the foregoing assignment, acknowledged the execution of the same as his/her/their free act and deed for the purposes therein named.

/s/ Charles D. Hollis Notary Public

Recorded at the Home Office this 26th day of June, 1975.

My Commission Expires:

Oct. 2. 1977

/s/ Edward C. Dahmer. Jr. Edward C. Dahmer, Jr. Comptroller


author: PATTERSON, Chief Justice,

text:
    Anthony McDONALD v. EAST JASPER COUNTY SCHOOL DISTRICT et al.
    No. 50019.
    Supreme Court of Mississippi.
    Nov. 2, 1977.
    Andalman, Berkmark, Adelman & Steiner, Michael S. Adelman, Hattiesburg, for complainant-appellant.
    Robert H. McFarland, Bay Springs, for defendants-appellees.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

This appeal is from a decree of the Chancery Court of the First Judicial District of Jasper County dismissing appellant’s bill of complaint for an injunction to prevent termination of his teaching services. The issue is whether the Public School Fair Dismissal Act requires mandatory compliance with its notice provisions. We think it does.

Appellant, Anthony McDonald, school teacher of twenty-two years in the East Jasper County School system, suffered from a lifelong debilitating bone condition. Due to a break in his right femur, he was absent from his teaching duties from December 16, 1974, to May 14, 1975, and after teaching only six days, he suffered a recurring break on September 2, 1975, and missed the remainder of that term. His last contract with the school board was for the school year of 1975-1976. Although unable to teach, he continued to receive his salary less $300 per month for a substitute teacher. At the time of trial his physician had released him for return to work.

On April 1 or 2, 1976, and other prior times, his principal orally notified him that his contract would not be renewed. He received correspondence dated April 14, 1976, from the principal and assistant principal that he would not be reemployed due to his prolonged absence from work. On April 26, 1976, McDonald requested a hearing before the school board in a letter to the board president. On May 11,1976, the principal wrote McDonald, reiterating his reasons for nonrenewal. Thereafter, a telephone call by McDonald prompted an invitation from the president of the school board to attend the June 7, 1976, board meeting. He did not attend nor did he receive notice of any action taken by the board.

McDonald filed his bill of complaint on September 9,1976, for an injunction prohibiting his dismissal. The allegations were denied by the defendants. The cause came on for trial and after complainant rested his case, the court sustained defendants’ motion to exclude and dismissed the cause with prejudice. McDonald appeals and contends that the trial court erred in granting the motion to dismiss because the notice and hearing provisions of the Public School Fair Dismissal Act were not satisfied.

Mississippi Code Annotated section 37-9-105 (Laws of 1974, Supp.1976) reads in pertinent part as follows:

Persons entitled to notice.
Any employee of a school district who has been employed by such district during the entirety of the preceding school year, shall be given notice within seven (7) days of the decision that he not be offered a contract for reemployment for the succeeding school term when:
******
(c) by April 1 the principal does not recommend to the superintendent the reemployment of a teacher, or by May 1 the principal does recommend the reemployment of a teacher and the superintendent does not approve the recommendation for the teacher’s reemployment, or by May 1 the principal and superintendent both recommend the reemployment of a teacher and the board of trustees of the district declines the recommendation.

Section 37-9-107 provides in part as follows:

Notice.
Except in the case of nonreemployment of the superintendent, notice shall be tendered by the superintendent to any employee within seven (7) days of the date when the recommendation to reemploy would have been made under the terms of sections 37-9-15 and 37-9-17 and amendments thereto.
******
The notice shall be mailed by certified mail, return receipt requested.

Section 37-9-109 specifies the right to a hearing as follows:

An employee entitled to notice under section 37-9-105 shall be entitled to:
* * * * * *
(b) request a public hearing before the board within seven (7) days after receipt of the notice;
(c) receive a fair and impartial hearing before the board within fourteen (14) days from the date of receipt of the notice from the employee requesting a hearing!
******

Under Section 37-9-17 a principal must recommend teachers for employment to the superintendent on or before April 1 of each year. In the event reemployment is not recommended, the superintendent must, pursuant to Section 37-9-107, tender notice by certified mail within seven days. Thus, the superintendent should have tendered notice to McDonald within seven days of April 1, 1976. While it is true that McDonald requested a hearing, it was not in accord with the time schedule of Section 87-9 — 109(b) and (c).

We held in Jackson v. Board of Education of Oktibbeha County, Mississippi, 349 So.2d 550 (Miss.1977), that strict compliance with the notice provisions of the act under question must be maintained and stated the following:

. . [Fjailure ... to abide by the mandatory dictates of the statute and to afford the appellant notice that he would not be reemployed resulted in an automatic renewal of his outstanding contract for the ensuing year, including compensation specified therein, although the statute does not specifically so provide. Unless that were true, the Public School Fair Dismissal Act would have no meaning and school officials could ignore it with impunity. (349 So.2d at 553)

There the employee received notice by regular mail on August 19,1975, that he would not be rehired for the school year 1975-1976. He requested and received a hearing on September 22, 1975. But this was held not to be sufficient compliance with the Act.

Appellees argue that reasonable and sufficient notice was given in compliance with the statute as the appellant had knowledge of facts which put him on notice and cite as support King Lumber Industries v. Cain, 209 So.2d 844 (Miss.1968), and Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641 (1947). They acknowledged at the time their brief was filed that no cases had construed the notice provisions of the Act. However, Jackson, supra, decided since that time, dictates mandatory compliance.

The defendant’s motion to dismiss at the completion of the complainant’s testimony should not have been sustained. The cause is therefore reversed and remanded.

REVERSED AND REMANDED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . The Public School Fair Dismissal Act, Laws of 1974, ch. 577, has been amended and repealed in part as follows: Miss. Code Ann. § 37-9-105 (1972), as amended by § 37-9-105 (Supp.1977); § 37-9-107 (1972), repealed by Laws of 1977, ch. 489, § 6, effective from and after July 1, 1977; § 37-9-109 (1972), as amended by § 37-9-109 (Supp.1977).


text:
    Joseph Earl KIRKLAND, III v. Mrs. Judy McGinty KIRKLAND.
    No. 49716.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    Danks, Craig & Moss, Dale Danks, Jr., Ben J. Piazza, Jr., Jackson, for appellant.
    Henry W. Bryan, Jackson, for appellee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   Appeal from Cháncery Court, Hinds County; Betty B. Tucker, Chancellor.

AFFIRMED.


text:
    Idabel Q. VANDEVANDER v. The MINNESOTA MUTUAL LIFE INSURANCE COMPANY.
    No. 49690.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    Gifford & Permenter, Eugene B. Gifford, Jr., Booneville, for appellant.
    Smith, Downs, Coleman & Ross, Wendell H. Trapp, Jr., Corinth, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Circuit Court, Prentiss County; Fred Wicker, Judge.

AFFIRMED.


text:
    Bill EASTERWOOD v. BANK OF LUCEDALE.
    No. 49701.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    A. M. Murphy, Lucedale, for appellant.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Circuit Court, George County; Merle F. Palmer, Judge.

AFFIRMED.


text:
    Rufus FAIRLEY v. STATE of Mississippi.
    No. 49953.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    W. S. Murphy, Lucedale, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Circuit Court, George County; Merle F. Palmer, Judge.

AFFIRMED.


text:
    LeRoy Percy GREEN, Jr. v. Donna Hembree GREEN.
    No. 49957.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    Eaves & Eaves, G. Jyles Eaves, Louisville, for appellant.
    Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Chancery Court, Winston County; John C. Love, Jr., Chancellor.

AFFIRMED.


text:
    Paul H. McPHAIL, Jr. v. Marilyn Schrader McPHAIL.
    No. 50343.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    Rex K. Jones, Hattiesburg, for appellant.
    Dan R. Wise, Hattiesburg, for appellee.
    • Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Forrest County; John M. Dunnam, Chancellor.

AFFIRMED.