author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. George JOLLA.
    No. 57689.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      James David McNeill, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, George Jolla, was charged by bill of information with the armed robbery of John H. Petry, a violation of LSA-R.S. 14:64. The defendant was tried, found guilty, and sentenced as a multiple offender, in accordance with LSA-R.S. 15:529.1, to serve fifty years in the custody of the Louisiana Department of Corrections without benefit of parole, probation, or suspension of sentence. On appeal to this Court, defendant relies upon eight assignments of error for reversal of his conviction and sentence. For clarity, we will treat separately the trial for armed robbery and the subsequent multiple offender proceeding.

A. ARMED ROBBERY TRIAL

ASSIGNMENT OF ERROR NO. 1

During rebuttal testimony for the State, Detective William Roth stated that after defendant’s arrest, the defendant admitted that he was at the scene of the robbery but that he did not “hold the men up,” and that two other men, Gerald Brown and “Zachery Nolan or something like that,” had committed the crime. Detective Roth further testified that Brown was subsequently arrested and charged with the crime.

During cross-examination, defense counsel asked Detective Roth whether the fact that Gerald Brown had been arrested was placed in Roth’s police report. The witness replied: “I believe the name’s in the Police Report, sir,” and added that he did not have the report with him. The defense counsel then called for production of the report so that Detective Roth could refresh his memory, and when this request was denied, he reserved Bill of Exceptions No. 2.

The trial court’s ruling is correct. It is only when the witness has no independent recollection of a matter concerning which he is testifying and must refer to his report in order to testify that the production of his report for defense counsel’s inspection is required. State v. Perkins, La., 310 So.2d 591 (1975); State v. Lane, La., 302 So.2d 880 (1974); State v. Tharp, La., 284 So.2d 536 (1973).

Moreover, since the witness conceded that Brown was also arrested for the crime, the notation of his name in the report was irrelevant. In demanding production of the report, defense counsel simply-stated, “He says it (information concerning Gerald Brown’s participation in the crime) is in the report and the report will show whether it’s in there or not.” Defense counsel cannot properly engage in a “fishing expedition” on a collateral matter.

Before this Court, defense counsel relies upon State v. Sbisa, 232 La. 961, 95 So.2d 619 (1957) to support his argument. We find that case inapposite. In Sbisa, the witness testified that he did not recall certain facts; he was asked by defense counsel if seeing a copy of the statement would refresh his memory; the witness stated that it would, but after objection by the prosecution, the trial judge refused to order production of the statement in question. In the ease at bar, conversely, Detective Roth remembered very clearly what Jolla had said and done in connection with his oral confession following arrest, and did not need to refresh his memory by consulting his report.

In brief before this Court, counsel contends that because Jolla, while on the witness stand, had denied making a statement to the police, production of the report was required to determine who was telling the truth. No such contention was made at trial. This contention cannot be urged for the first time on appeal. State v. Forbes, La., 310 So.2d 569 (1975); State v. Evans, 249 La. 861, 192 So.2d 103 (1966).

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Bill of Exceptions No. 3 defendant objects to the introduction into evidence of the Rights of Arrestee form which was admittedly signed by the defendant. At the time the objection was made, defense counsel stated that it should not be admitted into evidence “because the waiver indicated on there appears below the signature of this defendant[.]”

During trial, the defendant testified that the police officers read all of his Miranda rights to him and that he signed the Rights of Arrestee form. Immediately thereafter the prosecuting attorney offered, introduced, and filed into evidence the Rights of Arrestee form without objection by the defense.

Subsequently, while the State was laying the predicate for Jolla’s oral confession, Detective Roth testified that, immediately following Jolla’s arrest, he informed the accused verbally of his rights and that later in the Detective Bureau, Jolla signed the rights form in the presence of Roth and Detective Patin, who signed as witnesses. On cross-examination, Detective Roth stated that he filled out the form at issue and indicated with a mark that Jolla had waived his rights after they were read to him.

Near the conclusion of the trial, the prosecutor inadvertently offered the form into evidence again, and it was at this time that the objection was made.

In his Per Curiam, the trial judge informs us that he allowed the exhibit to be introduced into evidence because the court “after hearing testimony with regard to the exhibit and after viewing the exhibit, was of the opinion that the waiver of rights form was properly executed. . . .”

In addition to the fact that at the time the objection was made the form had already been admitted into evidence and the error, if any, had been waived, LSA-C.Cr.P. Art. 841, we find that the argument made here goes to the weight to be given the document by the jury rather than to its admissibility. The State laid a proper foundation for its introduction.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Here, based upon Bill of Exceptions No. 4, defendant alleges that the court erred in admitting into evidence the oral confession of defendant. In brief before this Court, defendant relies solely on his arguments in Assignments of Error Nos. 1 and 2 above.

For the reasons given in disposing of Assignments of Error Nos. 1 and 2 above, Assignment of Error No. 3 is likewise without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant asserts that the trial court erred in overruling his Motion for New Trial which alleged that the defendant was tried by a petit jury chosen in contravention of the holding of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

The present trial took place in November of 1974. The decision in Taylor v. Louisiana, supra, was handed down on January 21, 1975. As both the United States Supreme Court and this Court have consistently held, the decision in Taylor v. Louisiana is not applied retroactively. See Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Monk, La., 315 So.2d 727 (1975) and cases therein cited.

Assignment of Error No. 4 is without merit.

B. MULTIPLE OFFENDER PROCEEDING

ASSIGNMENT OF ERROR NO. 1

Following defendant’s conviction of armed robbery, the State filed a bill of information charging Jolla as a triple offender under LSA-R.S. 15:529.1, relying upon his 1971 plea of guilty to simple burglary and his 1972 conviction of theft. At the multiple offender hearing, defendant filed a Prayer for Oyer of a thumbprint found at the scene of the armed robbery and admitted in evidence at the trial. Bill No. 1 was taken to the denial of this request.

In his Per Curiam, the trial judge states:

“This assignment of error was taken to the court’s denial of oyer for a thumbprint which was found on the scene of the original offense, to-wit, armed robbery, in case Number 245-083. [The armed robbery case discussed above.]
“Defense counsel, at the time this assignment of error was noted, had filed a Prayer for Oyer of the defendant’s fingerprints which the State intended to use in order to establish to the court that he was one and the same person as set forth in the bill of information under Louisiana Revised Statute 15:529.1. Defense counsel desired oyer of a thumbprint found at the scene of the original offense and which was introduced at the trial of the original offense under case number 245-083. Although this court did allow the defense oyer of the prints which the State intended to introduce on the trial of the multiple bill, it could see no relevancy in oyer of a thumbprint found in a separate and distinct case.”

The trial court’s ruling is correct. The thumbprint formed a portion of the evidence in the instant armed robbery case in which the jury found the accused guilty of robbing John Petry, and hence formed no part of the triple billing procedure. Whether or not the thumbprint was Jolla’s was a question for the jury at the armed robbery trial.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, AND 5

Bill of Exceptions No. 2 involves the court’s denial of defendant’s Motion to Quash which was filed by the defendant against the bill of information charging him as a triple offender. Bill of Exceptions No. 7 objects to the overruling of the Motion in Arrest of Judgment filed after the armed robbery conviction.

The contentions made by defendant in these bills are: (1) that since the triple offender charge carried with it a possible penalty of 198 years, the triple offender charge should have been brought by a grand jury indictment under Article 1, Section 15 of the Louisiana Constitution of 1974, which mandates that all prosecutions for crimes punishable by life imprisonment shall be initiated by grand jury indictment; and (2) that the maximum penalty of 198 years without benefit of parole, probation, or suspension of sentence constitutes cruel and excessive punishment under the Louisiana Constitution of 1974. The accused herein was actually sentenced to fifty years at hard labor.

In recent decisions, we have rejected both of these arguments. Multiple billing need not be by grand jury indictment in cases involving possible life sentences, and neither the punishment for the crime of armed robbery nor sentences for multiple offenders constitute cruel or excessive punishment. State v. Maduell, La., 326 So.2d 820 (1976); State v. Williams, La., 326 So.2d 815 (1976); State v. Stewart, La., 325 So.2d 828 (1976); State v. Alexander, La., 325 So.2d 777 (1976).

Assignments of Error Nos. 2, 3, and 5 are without merit.

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

DIXON, J., concurs, disagreeing with treatment of assignment #2 on the merits.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Darryl SUMLER.
    No. 57965.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Ronald P. Nabonne, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Geraldine S. Veazey, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Jerry HAMPTON.
    No. 57746.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On January 25, 1973 defendant was indicted for the murder of his daughter. He was subsequently convicted and sentenced to serve eighteen years in the custody of the Department of Corrections. He appeals to this court raising two assignments of error.

In his first assignment of error, defendant contends the trial court wrongly admitted into evidence pictures of the deceased body. The photographs were taken at the morgue and show the body of a two month old child. They show penetration wounds in the areas of the eye, the back and the chest. The pictures also show the sutured autopsy incisions.

Because of the age of the victim and the nature of the wounds, the pictures are unpleasant. However, the relevancy of these pictures outweighed their inflammatory effect.

Defendant testified that the baby was stabbed accidentally during a fight between him and his wife when they fell on the bed in which the baby was lying. The photographs show that the wounds were multiple, deep and inflicted at widely different areas of the body. This tends to negate the inference that the child could have been stabbed accidentally.

This assignment lacks merit.

In his second assignment, defendant contends that a statement made by him to police officers the night of the incident was obtained in violation of his Fifth Amendment rights against self-incrimination. Defendant claims the atmosphere at the police station was “oppressive,” that he was ill when questioned, and that he was questioned without an attorney. The trial court’s per curiam accurately related the facts adduced at the motion to suppress and at trial:

“. . . The testimony on the motion disclosed that after the incident for which the defendant was arrested the defendant was taken to Charity Hospital for treatment of wounds received by him at the time of the incident in question. This was early in the afternoon. About ten p. m. that night the defendant was released by Charity Hospital to the officers and after having been booked was taken to the detective bureau for questioning. At the detective bureau the defendant was advised of his Constitutional Rights by the officers. The officers testified that neither one of them in any way physically abused, threatened or made any promises to the defendant in order to obtain a statement. The defendant testified that immediately upon being questioned the officers began to beat him because of his alleged refusal to make a statement to them. During his testimony the defendant denied making any statement whatsoever concerning this case. The officers testified in rebuttal on the motion that neither had struck the defendant or made any threats to him at the time of the taking of the statement. In my opinion the credible testimony on this matter was that of the two officers. I felt that the State had borne the burden of proof beyond a reasonable doubt that the defendant had been fully advised of all his Constitutional Rights and that there was no force or threats or promises'made to him in connection with the making of his statement. Accordingly, I overruled the motion to suppress.”

The officers also testified defendant appeared to have no residual discomfort from his earlier wound, and their interrogation lasted only “an hour or an hour and a half.” They were the only officers present during the interrogation.

C.Cr.P. 703 provides the following burden of proof:

“. . . the state shall have the burden of proving that a purported written confession or written inculpatory statement was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

Looking to all the circumstances, Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), we find the State sustained its burden of proving the confession voluntary. The physicians who attended defendant found he was well enough to be released to police authorities. Officers noticed no effect upon him caused by his injury. He was informed of his right to have an attorney present, and he chose not to exercise this right. This is not a case where defendant’s “will has been overborne and his capacity for self-determination critically impaired.” Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).

This assignment lacks merit.

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


text:
    STATE of Louisiana v. Ricky Lee MATTHEWS.
    No. 57939.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    . Philip J. McMahon, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana ex rel. Calvin David MEYERS v. C. Murray HENDERSON et al.
    No. 58324.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re Calvin David Meyers applying for Writ of Certiorari, Prohibition and Mandamus.

Granted. Evidentiary hearing ordered with the object of making an express finding on the question: judged by objective standards under circumstances as they existed at the time, was the applicant reasonably justified in his mistaken impression that the sentence he would receive would be concurrent with the Texas sentence. See Mosher v. Lavallee, 2 Cir., 491 F.2d 1346; U. S. v. Valenciano, 3 Cir., 495 F.2d 585; Moorhead v. U. S., 3 Cir., 456 F.2d 992.

SANDERS, C. J., dissents from granting of the writ.

SUMMERS, J., dissents from the granting of this writ.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Billy HENDERSON and Frank Matthews.
    No. 57651.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendants Henderson and Matthews were charged by grand jury indictment with distribution of heroin, in violation of La.R.S. 40:966(A). They pleaded not guilty but were found guilty as charged after a jury trial. They were sentenced to life imprisonment and appeal their convictions on the basis of two assignments of error.

ASSIGNMENT OF ERROR NO. 1

In this assignment, defendants complain that the trial court erred in refusing to grant their motion for a continuance made on the day of trial. According to the minutes in this case, Defendant Matthews was arraigned and pleaded not guilty on September 24, 1975. Defendant Henderson was arraigned on October 1, 1975 and also pleaded not guilty. The minutes indicate that the Orleans Indigent Defender Program was appointed to represent Henderson at the time of his arraignment. Nothing is contained in the minutes as to who was appointed to represent Matthews.

Trial was set for October 16, 1975. On October 10, an OIDP attorney filed a motion for bill of particulars on behalf of both defendants. Likewise, he filed a motion for a continuance on October 16, the date formerly set for trial, which motion was granted by the trial court, and trial was re-set for October 28. On October 28, defense counsel once again moved for a continuance grounded on two separate bases:

“* * * [Yjhg Orleans Indigent Defender Program was appointed to represent defendants; that Frank Matthews had obtained the Loyola Law Clinic to represent him; that not until October 21 did his attorney learn that Frank Matthews would be not represented by Loyola Law Clinic, that defendant Henderson as of October 27,1975 gave me the names of Mrs. Nettie Smith and a Mr. Dantie who will testify as to defendants [sic] whereabouts as of that day and also witnesses Henry Lee, Delia Mae Smith and Sam Smith who will testify as to whether or not defendants had made any sales of heroin to Larry Taplin; * *

The trial judge refused the motion for a continuance, noting in his per curiam to this assignment of error that neither ground urged by defendants had merit.

There is no indication anywhere in the record that anyone other than the OIDP attorney was appointed to represent either defendant. The attorney filed a motion for bill of particulars on behalf of both defendants, and in his motions for continuances he stated that he was the “court appointed attorney for the defendants.” It was not until the day of trial that defense counsel argued that the Loyola Law Clinic was supposed to have represented Matthews, and, as the trial judge’s per curiam indicates, counsel gave no reason why it would be difficult or impossible for one attorney to represent both defendants.

We find from all the circumstances that defendant Matthews failed to demonstrate that the OIDP attorney was not prepared to present his defense or that lie was unfairly prejudiced by the trial court’s failure to grant his motion for a continuance.

Likewise, we find no merit in the argument of defendant Henderson that a continuance should have been granted because of the absence of material witnesses who would have testified in his behalf. On the day before trial, Henderson gave his attorney a list of names of witnesses who would testify in his behalf. At the hearing on the motion for a continuance, the State called an agent of the United States Department of Justice Drug Enforcement Administration and an officer of the New Orleans Police Department, both of whom testified that they had attempted extensively and unsuccessfully to locate three of the persons sought by defendant as witnesses. They indicated that they did not know of the other two witnesses sought. An instanter subpoena was issued for the witnesses, and one of them appeared to testify on behalf of defendant.

La.Code of Criminal Procedure article 709 provides:

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

It is clear that defendant did not satisfy the requirements established by this article in order to obtain a continuance based upon the absence of a witness. No facts were shown revealing due diligence on behalf of defendant to obtain the witnesses, nor was there any indication that the witnesses would likely be available at any time to which trial could be deferred.

For the foregoing reasons, we find that there is no merit in defendant’s argument that a continuance should have been granted because of absent witnesses. This assignment has no merit.

ASSIGNMENTS OF ERROR NOS. 2 and 3

Defendants objected to the introduction of State Exhibits 1 and 2, and assigned as error the trial court’s refusal to sustain their objection. S-l is the brown evidence envelope into which S-2, the three foil packets containing heroin allegedly sold by the defendants, was placed by police officers.

Demonstrative evidence is admissible at trial if the evidence establishes that it is more probable than not that the evidence is related to the case. This probability may be established by visual identification of witnesses or by establishing chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence. Ultimately, the connexity of physical evidence is a factual matter for determination by the jury. State v. White, 321 So.2d 491 (La.1975); State v. Dotson, 260 La. 471, 256 So.2d 594 (1972).

In the instant case, the State offered the testimony of the officer who purchased the heroin from the defendants, of the officers who brought the evidence to be tested, and of the criminalist who tested the contents of the three foil packets. The trial court properly found that the evidence was more than likely that related to the case on the basis both of visual identification and chain of custody. The judge did not err in allowing the evidence to be admitted.

These assignments of error are without merit.

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


author: SUMMERS, J.,

text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 58563.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
    Marshall B. Brinkley, Gen. Counsel, Louisiana Public Service Commission, Baton Rouge, Saul Stone, Anthony M. DiLeo, Michael R. Fontham, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendant-relator.
    Victor A. Sachse, Jr., Breazeale, Sachse & Wilson, Baton Rouge, M. Robert Sutherland, J. Robert Fitzgerald, Norman C. Frost, Birmingham, Ala., for plaintiff-respondent.
   In re Louisiana Public Service Commission applying for Supervisory Writ of Review.

Writ granted. The district court’s order is reversed. The existence of the injunction proceeding permits the taking of depositions.

SUMMERS, J.,

is of the opinion this writ should be granted. However, a hearing should be held in this court giving all parties, and the trial judge, an opportunity to be heard.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Edward L. RHODES.
    No. 57693.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Elliott W. Atkinson, Jr., Roy A. Mau-ghan, Ltd., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Edward L. Rhodes was charged by bill of information with armed robbery in violation of La.R.S. 14:64. On August 16, 1974, he purportedly entered an A & P store located at 6315 Airline Highway in East Baton Rouge Parish, brandished a .45 calibre automatic pistol, threatened several employees, including the manager, Don Massey, and took $5,000 from the cash register which was under the immediate control and in possession of Mr. Massey. Ten days later he was arrested in a motel room in New Orleans. He pled not guilty, waived trial by jury, was tried and convicted. He was sentenced to serve 15 years at hard labor without benefit of probation, parole or suspension. He now appeals his conviction and sentence, relying on five assignments of error.

Most serious of defendant’s assignments of error are numbers three and four. By assignment of error number three, defendant argues that the trial court erred in allowing the state to cross-examine defendant concerning his presence in the motel room when his response was possibly incriminating as to other matters. By assignment of error number four, defendant contends that the trial court erred in allowing the prosecution to inquire whether defendant had tried to escape following his arrest.

Defendant had been arrested by New Orleans Police officers at Mason’s Motel in New Orleans, while in a room he had allegedly rented under an assumed name. The officers were acting on fugitive warrants from Columbus, Georgia and San Antonio, Texas. At the time of the arrest, the officers removed from the room a locker containing defendant’s personal belongings and logged it in New Orleans Police Department property book, rather than the evidence book, apparently because they had no reason to believe the contents would have any evidentiary value. The following morning, after having been alerted that defendant was possibly involved in a Baton Rouge, Louisiana armed robbery, the officers returned to the motel and again searched it without a warrant. At that time they found $2500 in cash, a portion of which was allegedly taken in the subject armed robbery.

During the course of trial defendant testified on his own behalf. He denied that the motel room in which he was arrested had been rented by him, stating that he was only there to pick up some personal property. The prosecutor then asked defendant what property he had gone to pick up. Defense counsel objected to the question on the grounds of defendant’s privilege against self-incrimination, U.S.Const. amend. V; La.Const. Art. i, § 16, contending that by taking the stand defendant “has waived his right to self-incrimination on this particular matter only but not perhaps on any other collateral matter, and that possibly there could be some statement he would make that would involve him in other matters other than this armed robbery today, and I don’t believe that is in the scope of . cross-examination.” The trial judge overruled the objection and defendant responded that he had gone to the motel room to see about a shotgun that the room’s occupant wanted to sell him.

Later on cross-examination the prosecutor asked defendant if he had tried to escape following his arrest. Defense counsel objected, on the grounds that there was a charge of simple escape against defendant and an anwser “would call for self-incrimination on the charges presently pending.” The state argued that flight to avoid prosecution is relevant and the judge overruled the objection.

Whatever the merit of the claim that a defendant testifying on his own behalf may not be cross-examined on totally irrelevant matters if an answer requires him to incriminate himself, a defendant who chooses to waive his fifth amendment privilege by testifying may certainly be required to answer possibly incriminating questions pertinent to the case under consideration, if relevant. He may be cross-examined on the whole case.

Both questions, that concerning the reason for his presence in the motel room, and that relating to whether he had tried to escape were the proper subject of cross-examination.

There was no error in the trial court’s ruling.

Defendant’s remaining assignments likewise have no merit:

1. Assignment of error number one is directed at the court’s overruling defense objection to an in-court identification of the defendant by one Julius T. Stokes, an assistant manager at the A & P store who was present at the time of the robbery. We do not find that this witness, who positively identified the defendant in court and who testified that he had selected the defendant. at a line-up to which he was called by investigating officers some time after the robbery, had his in-court identification tainted by virtue of the fact that on the stand and just before making his in-court identification he was shown a photograph of the line-up which he had earlier attended.

2. The trial court’s overruling of the motion to suppress was not erroneous. It was not unreasonable for the officers who were arresting this defendant in connection with a. fugitive warrant to gather defendant’s things from a locker in the motel room and log them in the property book incident to that arrest. Nor was it unreasonable on the succeeding day to search the motel room, the occupancy of which had been terminated by the prior day’s arrest and incarceration of defendant on a fugitive warrant.

3. With respect to assignment of error number five, it was not error for the trial court to allow the state to reopen its ease and present additional evidence. The introduction of evidence by either the state or the defense after it has presented its case and rested is within the sound discretion of the court. Article 765(5), Code of Criminal Procedure, State v. Hudson, 253 La. 992, 221 So.2d 484 (1969); State v. Bush, 297 So.2d 415 (La.1974); State v. Rose, 33 La.Ann. 932 (1881).

For the foregoing reasons the conviction and sentence of defendant Edward L. Rhodes is affirmed.

      . La.R.S. 15:462 provides:
      “When a person accused, or a husband or wife becomes a witness, such witness shall be subject to all the rules that apply to other witnesses, and may be cross-examined upon the whole case.”


text:
    STATE of Louisiana v. Rudolph JOHNSON.
    No. 57928.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Graydon K. Kitchens, Jr., Kitchens, Benton & Kitchens, Minden, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James S. Harris, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Johnny RICHARDSON.
    No. 57698.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      James J. Gleason, III, Public Defender, 22nd Judicial Dist. Court, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Johnny Richardson, was charged by bill of information with the crime of simple burglary in violation of R.S. 14:62. After a jury trial he was found guilty and subsequently sentenced to five years imprisonment. On appeal he relies on four assignments of error.

Assignment of Error No. 1

This assignment was reserved when the prosecutor sought to admit into evidence photographs of the defendant’s van and stolen items found therein. The basis of the assignment is that the judge erred in admitting the photographs into evidence without first allowing defense counsel a chance to examine them.

As stated in the defense brief, counsel did not object to the introduction of the photographs into evidence. Counsel merely wished to see them before they were handed to the jury. The trial judge was unduly restrictive in not allowing defense counsel an opportunity to see the photographs before they were passed to the jury. Exhibits whose nature has been concealed from the defense may never be presented to the jury, and if we could ascertain that the defense was prejudiced, we should reverse. Nevertheless, even at this stage, defense points to no reason why the photographs should have been excluded.

Assignment of Error No. 1 is without merit.

Assignment of Error No. 2

The defendant took the stand, recounting a different version of the events from the version told by the State’s witnesses. The prosecutor asked the defendant whether it was therefore correct that the State’s witnesses were perjurers and liars. Defendant objected, contending the questioning.was improper because it is the jury’s function to determine who was telling the truth. The trial judge overruled the objection on the grounds that the defendant was on cross-examination.

Such crude efforts at cross-examination are not to be encouraged, but we are not convinced that there has been such an abuse of the trial judge’s discretion that a reversal is appropriate. It is proper to call attention to the contradiction between witnesses, but to try to force one witness to accuse others of perjury and lying is argumentative and normally non-productive. We find, however, that no undue prejudice resulted in this case.

Assignment of Error No. 2 is without merit.

Assignment of Error No. 8

Defense counsel stated that he had “six witnesses from upstairs” (i. e., the St. Tammany Parish Jail, located above the courtroom) and asked the judge whether he wanted the witnesses brought down separately or all at one time. The prosecutor then remarked: “They are not the characters that you can bring down at one time.” Defendant moved, for a mistrial on the basis of the prosecutor’s remark. The judge denied the mistrial motion, but admonished the jury to disregard the remark.

The prosecutor’s remark (even though its meaning is unclear), was probably an improper attempt to impeach the credibility of defendant’s witnesses before they were sworn to testify. However, it did not fall within the ambit of prejudicial remarks requiring a mistrial under C.Cr.P. 770. Rather, the judge was entitled to admonish the jury to disregard the remark, in lieu of declaring a mistrial, if satisfied that the admonition was sufficient to assure defendant a fair trial. C.Cr.P. 771. This single, offhand remark in no way denied the defendant a fair trial, and we find no error therefore in the refusal to grant a mistrial.

Assignment of Error No. 3 is without merit.

Assignment of Error No. 4

The prosecutor asked a defense witness on cross-examination: “What did I convict you of?” The defendant objected, on the grounds the witness could not be questioned about past convictions.

This contention is incorrect. Any witness on cross-examination may be questioned with regard to prior convictions. R.S. 15:495.

In brief, the defendant advances two additional grounds in support of his objection. He asserts that the question was improper in form, and that the convictions were on appeal, a fact of which the prosecutor was allegedly aware. Since these grounds were not raised in the trial court, they cannot be considered on appeal. C.Cr.P. 841; State v. Powell, 325 So.2d 791 (La.1976).

Assignment of Error No. 4 is without merit.

Accordingly, the conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Hubert BROWN, Jr. and Alfred Storks.
    No. 57930.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Anderson Council, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Franklin JONES.
    No. 57970.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou, Asst. Dist. Atty., for .plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Peter HILLS, Jr.
    No. 57985.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, John M. Standridge, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John J. Messina, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Peter HENRY.
    No. 58006.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    John J. Dolan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Emmett HICKERSON.
    No. 58008.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Bernard Jack Usprich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Royal A. EVERY.
    No. 58042.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Frank J. Kenner, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    Mrs. Linda Lou HARDY v. CUMIS INSURANCE SOCIETY, INC. Jocelyn ARDOIN et al., v. STATE of Louisiana Through the DEPT. OF HIGHWAYS and Cumis Insurance Society, Inc.
    No. 58320.
    Supreme Court of Louisiana.
    September 24, 1976.
   In re Julius Henry and Cumis Insurance Society, Inc. applying for certiorari or writ of review to the Court of Appeal, 333 So.2d 412, 420, Third Circuit, Parish of Sabine.

Writ denied.

On the facts found by the court of appeal, no error of law.

DIXON, TATE and DENNIS, JJ., are of the opinion the writ should be granted on the issue of the negligence of the driver.


text:
    STATE of Louisiana v. Judy TORNABENE.
    No. 57717.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Sheldon G. Fernandez, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-0ulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-appellee,
   DENNIS, Justice.

Defendant Judy Tornabene was convicted of possession with intent to distribute codeine in violation of La.R.S. 40:967(A) and sentenced to serve six years at hard labor. She appealed relying on six assignments of error.

On June 1, 1975, defendant’s purse containing $3500 was found near a New Orleans bank which had been robbed two days earlier. The purse was turned over to local police who related the discovery to F.B.I. agents investigating the robbery. On June 2,1975; two F.B.I. agents went to the house where defendant resided with her mother, Wilda Roberson, informed Mrs. Roberson they suspected defendant had been connected with the bank robbery, and asked for permission to search the premises. After conferring with her daughter, who said she did not object to the agents’ request, Mrs. Roberson signed a written consent form allowing the officers to search. In the defendant’s bedroom closet one agent found several plastic envelopes of pills concealed in packages of coffee and grits. Defendant was given the Miranda warning and questioned about the money found in her purse. She reportedly stated that the money had been acquired through the sale of drugs. Chemical analysis of some of the pills indicated that they contained codeine and other narcotics.

ASSIGNMENTS OF ERROR NOS. 1 and 3

These assignments relate to the denial of the defendant’s motions to suppress the inculpatory statement and evidence seized in the search. While defendant does not contest the validity of the consent to the search, she argues the agents did not have sufficient cause to request a search of her home or to question her. She bases her contentions primarily on our decisions in State v. Truss, 317 So.2d 177 (La.1975) and State v. Saia, 302 So.2d 869 (La.1974) wherein we stated that:

“ * * * The police cannot approach citizens under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual under Terry v. Ohio [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)].”

Our opinions in those cases pertained to actions by police in approaching or detaining defendants based on little more than the individuals’ demeanor or gestures during street encounters.

The factual situation in the instant case is distinguishable both in character and degree from the street encounter cases. First, the F.B.I. agent did not detain the defendant or approach her under circumstances that made it seem some form of detention was imminent. Ms. Tornabene was not accosted in the street, but was questioned at her home. The evidence indicates she and her mother were free to deny the agents access to the house and to decline to talk to them. Second, the officers in this case acted upon evidence of illicit activity which we consider to be more substantial than the furtive movements or startled look relied upon by the police in Saia and Truss. In the present case, defendant’s purse containing a large and unexplained quantity of cash, had been found in the vicinity of a recent bank robbery. Their suspicions justifiably aroused by this discovery, the agents acted properly in seeking an interview of the defendant and a voluntary search of her home.

The agents’ suspicions fell short of probable cause to arrest or search, but the circumstances surrounding the discovery of defendant’s purse furnished grounds for the officers to approach defendant at her home for consensual, non-custodial questioning and to request a search of her residence. The United States Supreme Court has recognized that:

“In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973).

The high court in Schneckloth also quoted with approval from People v. Michael, 45 Cal.2d 751, 290 P.2d 852 (1955), which held that it is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes, if such inquiries are courteously made and not accompanied with any assertion of a right to enter or search or secure answers. We concur in this holding, but we also agree with the precautionary remarks of Justice Traynor in that case:

“We are not unmindful of the fact that the appearance of four officers at the door may be a disturbing experience, and that a request to enter made to a distraught or timid woman might under certain circumstances carry with it an implied assertion of authority that the occupant should not be expected to resist.” Id., 290 P.2d at 854.

Furthermore, we reserve judgment on whether the F.B.I. agents could have approached Ms. Tornabene for any purpose on the basis of less substantial evidence of illicit activity than existed in this case. We conclude only that the agents in the present case acted properly and that the record' indicates the evidence was voluntarily produced in response to a reasonable inquiry.

These assignments of error do not warrant reversal of the conviction and sentence.

ASSIGNMENT OF ERROR NO. 2

Defendant claims that the trial court erred in admitting into evidence, over her objection, the other narcotics seized with the codeine. Because these other drugs were controlled dangerous substances, possession of which is illegal, La. R.S. 40:961 ff., defendant argues that the introduction of this evidence constituted an improper reference to other crimes. However, the trial judge correctly ruled that the evidence was part of the res gestae, having been seized at the same time and from the same place as the codeine. La.R.S. 15:447-48; State v. Frazier, 283 So.2d 261 (La.1973); State v. Mays, 315 So.2d 766 (La.1975). The court further found that the evidence was relevant to show the defendant’s intent to distribute, a constituent element of the crime with which she was charged. State v. Hamilton, 307 So.2d 329 (La.1975).

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 4 and 5

Defendant objected to the introduction of testimony on the street value and dosage units of codeine, and further claimed that if this testimony was to be admitted at all the State’s expert witness was not qualified to give it.

The State argued that it was necessary to show that the over 600 codeine tablets which defendant had had in her possession were more than she would need for her personal consumption, in order to prove that she had possessed them with the intent to distribute. La.R.S. 15:441 provides:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

We find that the evidence was clearly relevant to the issue of intent and that it was a proper exercise of the trial court’s discretion to admit it.

The court qualified Officer William Ren-ton as an expert respecting the street usage of narcotics. Officer Renton had served in the Narcotics Division of the Jefferson Parish Sheriff’s Office for four and a half years, during which time he had participated in over 500 narcotics arrests and had purchased drugs on the street in 150-200 cases. He had had considerable experience in working on the street as an undercover agent and had previously been qualified as an expert on the street usage of drugs in federal courts and in the Twenty-fourth Judicial District Court.

The officer admitted that he had not encountered codeine in this particular form before nor had he ever been qualified to render an opinion as to the use of codeine; and this was the basis of defendant’s objection. However, the officer stated that he was familiar with the use of codeine, that he had purchased it on the street, and that he had previously testified as to the use of other opium derivatives similar to codeine. The trial judge felt that the limited questions put to the witness were within his expertise, and the lower court’s decision as to the competency of an expert may not be disturbed in the absence of manifest error. State v. Richmond, 278 So.2d 17 (La.1973); State v. Thorson, 302 So.2d 578 (La.1974).

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 6

Finally, defendant argues that the trial judge erred in permitting the issue of guilt to go to the jury when the State had not proved that defendant knowingly possessed the codeine and when, to the contrary, Linda Redler, a defense witness, had testified to having placed the narcotics in defendant’s room without her knowledge of it.

Defendant did not move for a directed verdict, and had she done so, the trial court would have been without the authority to grant it. By Acts 1975, No. 527, § 1, which went into effect shortly before the trial of this case, the Louisiana legislature amended La.C.Cr.P. art. 778 to provide for judgments of acquittal by the court in judge trials only; in a jury trial the evidence must go to the jury.

An essential element of .the crime with which defendant was charged is that the possession be knowing or intentional. La. R.S. 40:967(A). However, La.R.S. 15:445 provides that intent need not be proven as a fact but “may be inferred from the circumstances of the transaction.” Thus we conclude that there was ample evidence in the record from which the jury could have inferred that defendant’s possession of the codeine was intentional.

Furthermore, the jury was not obliged to accept the exculpatory testimony offered by Linda Redler. This witness testified that one evening several weeks before defendant’s arrest she made plans with the defendant to spend the night at her house. However, she stated that beforehand she went to the French Quarter where she met a man with whom she spent several hours, until at approximately 1:00 a. m. he gave her a ride to defendant’s house. Once there, she said, he explained that he had nowhere to go and asked if he might come inside; she refused this request but agreed to hold the man’s clothes for a day or two until he came to pick them up. Ms. Redler testified that he then gave her some articles of clothing and a sack containing a bag of coffee and a bag of grits. She stated that she placed these items in defendant’s closet, unknown to defendant who was then asleep, and forgot to mention it until it was discovered that contraband was concealed in the bags. She claimed that the man had never contacted her again but that she had later learned from a newspaper that he was an escaped convict and that he had been killed by the police.

One of the primary functions of the jury is to weigh the often conflicting accounts presented to it and determine which are the more credible. In this case, the jury apparently rejected Linda Redler’s testimony, as was its right, and accepted the evidence of guilt offered by the State.

This assignment is without merit.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. James N. McCOY.
    No. 58043.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Clayton J. Borne, III, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Geraldine S. Veazey, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM:

text:
    STATE of Louisiana v. John Brad LACEY.
    No. 58093.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM:

Affirmed.


text:
    STATE of Louisiana v. Carl BENION.
    No. 58119.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    In the Matter of ADOPTION OF Jason Edward McARTHUR.
    No. 58388.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: William Douglas McArthur, II, applying for Certiorari, or writ of review, to the Court of Appeal, 333 So.2d 372, Fourth Circuit, Parish of Orleans.

Application denied; the result is correct.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Charles Wilfred EZEB, Jr.
    No. 58130.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Vincent Wilkins, Jr., Director, Vincent Wilkins, Jr., Appellate Counsel, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    Mary Louise Edwards JORDAN v. LIFE GENERAL SECURITY INS. CO.
    No. 58402.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Mary Louise Edwards Jordan, applying for Certiorari, or writ of review, to the Court of Appeal, 333 So.2d 732, Fourth Circuit, Parish of Jefferson.

Writ denied. The result is correct.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Ernest YORK.
    No. 58152.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Casino, Dist. Atty., Houston C. Gascon, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lee YOKUM a/k/a Lee Wilson.
    No. 58156.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Ronald J. Bertrand, Ware & Bertrand, Rayne, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert T. Cline, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: TATE, J.,

text:
    Rodney JUNEAU et al. v. INTERSTATE BLOOD BANK, INC. OF LOUISIANA et al.
    No. 58372.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re Rodney L. Juneau and Rose Anne Juneau applying for certiorari, or writ of review, to the Court of Appeal, 333 So.2d 354, Third Circuit, Parish of Rapides.

Writ denied. The result is correct.

TATE, J.,

I think the defect in the blood gives rise to a cause of action for fault, La. Civil Code arts. 2313, 2317, not upon any implied warranty. See dissent in Thomas v. Gillette Co., 230 So.2d 870, 876 (La.App.3rd Cir. 1970).

DENNIS, J., is of the opinion the writ should be granted.


author: DIXON, J.,

text:
    STATE of Louisiana v. Letha Mae BRANTLEY.
    No. 58672.
    Supreme Court of Louisiana.
    Sept. 30, 1976.
   In re: Letha Mae Brantley, applying for writ of review and certiorari.

Writ denied. Under La. Code of Criminal Procedure, Art. 884 (1968) the defendant cannot be sentenced to a jail term exceeding six months, and therefore right to a jury trial has not been violated.

DIXON, J.,

is of the opinion the writ should be granted and this Court should write on the question. Nevertheless, the reasons given in the denial are correct.


text:
    RIVER ROUGE MINERALS, INC. v. ENERGY RESOURCES OF MINN. et al.
    No. 58247.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Energy Resources of Minn., Inc., Trans-Gulf Petroleum Corp. and David E. Burk, Sr. applying for certiorari, or writ of review, to the Court of Appeal, 331 So.2d 878, Second Circuit, Parish of DeSoto.

Writ refused. There is no error of law in the court of appeal opinion.

DIXON, J.,

dissents from refusal, being . of the opinion that lignite is a “mineral” clearly included in the o. & g. lease and covered by the royalty clause: “On all other minerals or kindred products mined”, etc. Nevertheless, whether an o. & g. lease would permit stripmining is extremely doubtful, in the absence of provision specifically permitting it.

CALOGERO and MARCUS, JJ., are of the opinion the writ should be granted.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Mitchell JOHNPIRE.
    No. 57729.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Philip E. O’Neill, Orleans Indigent Defender Program, Kenner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Mitchell Johnpire, charged by bill of information with simple robbery, a violation of La.R.S. 14:65, was convicted after a jury trial and sentenced to five years’ imprisonment at hard labor.

The defendant and his accomplices robbed the driver of a liquor truck engaged in making deliveries to the Canal Villere Store located on Poland Avenue in Orleans Parish. One of the women arrested in connection with the investigation of this offense cooperated with the police to the extent of naming and identifying her confederates in exchange for plea bargain consideration. Her statements implicating the defendant, her identification of him in a photographic display and her subsequent in-court identification were significant factors in defendant’s prosecution and conviction, especially since the victim had no opportunity to observe defendant.

The complaint of reversible trial error in brief asserts the use of impermissibly suggestive identification procedures in connection with this accomplice’s photographic identification, claimed to subsequently taint the in-eourt identification.

The defense failed to perfect bills of exception in conformity with the procedure required at that time by the Code of Criminal Procedure. Article 845 of the Code of Criminal procedure then provided:

“The bills of exceptions reserved during the trial shall be submitted to the court and signed by it at any time prior to the granting of an order of appeal; except that if the bills of exceptions are not submitted and signed prior to the order of appeal the court shall fix a later date for the submission and signing of bills of exceptions, which extended date must be not later than the return day for the appeal. The court must sign the formal bills of exceptions, but may attach per curiam comments stating its reasons for the rulings. If the court refuses to sign a formal bill of exceptions, its refusal may be reviewed on a writ of mandamus.”

Since this defendant was convicted and sentenced prior to the effective date of Article 844, as amended by Act 207 of 1974, the procedure on appeal prior to that amendment did not permit consideration by this Court of bills of exception not signed by the trial judge as required by law. See La.C.Crim.Pro. art. 844 as it read prior to its amendment by Act 207 of 1974.

A review of the record discloses that no bills of exception nor assignments of error were perfected in accordance with law. The trial judge notes this deficiency in a handwritten addendum to a per curiam which he submitted. The Court is consequently restricted to a review of the record for patent error. State v. Jackson, 332 So.2d 211 (La.1976).

Finding no error by our review of the record, the defendant’s conviction and sentence are affirmed.

DIXON, J., concurs.


text:
    Ray G. HARRINGTON v. J. C. UPCHURCH.
    No. 58215.
    Supreme Court of Louisiana.
    Sept. 8, 1976.
   In re Ray G. Harrington applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, 331 So.2d 506, Parish of Calcasieu.

Writ denied: Without approving the reasoning of the court of appeal, we find no error in the result. Under the facts shown, the presence of the cow in open-range highway did not create an unreasonable risk of injury to others; therefore, the owner is shown to be exonerated from fault. See Loescher v. Parr, 324 So.2d 441 (La.1975), Holland v. Buckley, 305 So.2d 113 (La.1974).

DIXON, J.,

dissents from denial. Only if it can be said that a cow darting into highway at night is not a “domesticated animal (which) harms another”, can the court hold Holland v. Buckley inapplicable to establish the presumption of fault “in the nature of strict liability.” No statute or other law gave the owner of the cow the right to permit it to go on the highway, nor excused the owner in any way. If we are to have a “cow law” different from “dog law”, we should more adequately explain it.

CALOGERO, J., dissents.


text:
    Richard E. DEICHMANN v. ALTO EMPLOYEES’ TRUST and A. A. Harmon, Sr., as trustee of Alto Employees’ Trust.
    No. 58316.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re Alto Employees’ Trust and A. A. Harmon, Sr., etc. applying for certiorari, or writ of review, to the Court of Appeal, 332 So.2d 582, Fourth Circuit, Parish of Orleans.

Application denied; there is no error of law in the judgment of the court of appeal.

SUMMERS, J., is of the opinion the writ should be granted.

TATE, J.,

dissents. The issue of the abuse of the trustee’s discretion presents a serious issue in the development of trust law which affects the widespread portion of employment profit-sharing plans. This court should grant certiorari and review this issue.


text:
    Edmond P. WOLFF v. Charles FLANAGAN d/b/a Cadillac Plastic and Chemical Co. and Rohm and Hass Company.
    No. 58375.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Edmond P. Wolff applying for certiorari, or writ of review, to the Court of Appeal, 333 So.2d 663, Fourth Circuit, Parish of Jefferson.

Writ refused. On the facts found by the court of appeal, there is no error in its judgment.

DIXON and TATE, JJ., dissent from refusal to grant, not agreeing with the conclusion as to the responsibility of Cadillac Plastic.


text:
    STATE of Louisiana v. James FOURNETTE.
    No. 58571.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
   In re: James Fournette applying for supervisory writs.

Writ denied. Adequate remedy by appeal in the event of conviction.

DIXON, J.,

is of the opinion the writ should be granted. The charge on its face indicates a violation of La.Const. (1974) Art. I §§ 20 & 11.


text:
    Oscar SYLVESTER, Jr. v. Robert Daigle DUPRE.
    No. 58341.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Robert Daigle Dupre, applying for certiorari, or writ of review, to the Court of Appeal, 333 So.2d 447, Third Circuit, Parish of Evangeline.

Writ refused. On the facts found by the Court of Appeal, the result is correct.

DIXON, J.,

dissents. There seems to be a misapplication of the 4th requirement of “actio de in rem verso”, that is, an absence of “justification” or “cause” for the “enrichment”.


text:
    STATE of Louisiana v. Johnel HUNT.
    No. 57929.
    Supreme Court of Louisiana.
    Sept. 14, 1976.
    Anderson Council, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

SUMMERS, J., dissents.


text:
    Joaquin COUTO, Individually and as duly qualified natural tutor of Maria Defantima Couto et al. v. Doctor Louis R. OMS and St. Paul Fire and Marine Insurance Company.
    No. 58187.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re: Joaquin Couto, etc., et al applying for certiorari, or writ of review, to the Court of Appeal, 331 So.2d 236, Fourth Circuit, Parish of Orleans.

Writ refused. The pivotal issue is factual. On the facts found by the court of appeal, there is no error of law in its judgment.

CALOGERO, J., dissents from writ denial.


author: TATE, J., CALOGERO, J.,

text:
    STATE of Louisiana v. John J. BELL et al.
    No. 58141.
    Supreme Court of Louisiana.
    Sept. 17, 1976.
   In re State of Louisiana applying for supervisory writs.

Writ granted. The ruling of the trial judge is vacated. It is ordered that the trial judge conduct an evidentiary hearing, in the light of the pleadings filed in this court, to determine the pendency of preliminary pleas not ruled upon. See LSA-C. Cr.P. art. 580.

TATE, J.,

in concurring, also notes that the trial court will have before it the mbtion to quash based upon the denial of a speedy trial, when it rules upon the effect of the pleadings filed for the first time here and not called to the attention of the trial court, despite its specific request for such information.

DIXON, J., dissents. The ruling of the trial judge is correct.

The prosecution in this case has expressed no intention to proceed to trial on these indictments, as found by the trial judge in hearings on May 14 and May 27, 1975. (See p. 150 of our # 56,394.)

The affidavit attached to the State’s application (which was not before the trial judge) is in conflict with records of these cases already on file in this court. The motion to recuse the D.A., Sargent Pitcher, the motion to quash the bill of indictment and the motion to inspect the minutes of the Grand Jury were decided (denied) on April 14,1972 by Judge Donovan Parker, (p. 67 of our # 56,394). If there is a pending motion for change of venue, we should not assume the trial judge is unaware of it, for there is also a motion for a speedy trial filed in these cases on September 26, 1972. (See p. 172 of our # 56,394; this motion is as yet undecided, but cannot be said to retard the trial.)

The burden of proof to show interruption or suspension of prescription is on the State, and the State has failed to make such proof.

CALOGERO, J.,

concurs. I am inclined to deny the State’s application, believing that the ruling of the trial judge was correct. However, inasmuch as a majority of the court is remanding the case for further proceedings and in effect, deferring an ultimate determination as to the validity of the plea of prescription, I will concur and withhold judgment on the merit of the prescription plea until we review a possibly more complete record to be made up in the trial court.

DENNIS, J., concurs in granting the writ.


text:
    Bryan DUMEZ et al. v. LOUISIANA HIGH SCHOOL ATHLETIC ASSN. et al.
    No. 58401.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re Bryan Dumez, et al. applying for certiorari, or writ of review, to the Court of Appeal, 334 So.2d 494, First Circuit, Parish of Terrebonne.

Writ refused. On the facts found, there is no error of law.

CALOGERO, J., is of the opinion the writ should be granted.

DENNIS, J., is of the view the writ should be granted.


author: TATE, J.

text:
    Philip DESORMEAUX v. CENTRAL INDUSTRIES, INC., et al.
    No. 58362.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Philip Desormeaux applying for certiorari, or writ of review, to the Court of Appeal, 333 So.2d 431, Third Circuit, Parish of Acadia.

Writ denied. The result is correct.

SUMMERS, J., the writ should be granted.

TATE, J.

Although the issue is correctly decided under existing jurisprudence, this court should re-examine Forcum-James Co., Inc. v. Duke Transporation Co., 231 La. 953, 93 So.2d 228 (1957) insofar as applicable to situations such as is here presented.


author: HOOD, Judge. WATSON, Judge

text:
    Laura Claudette Culpepper RUSSELL and Armstrong R. Conley, Plaintiffs-Appellants, v. Louis L. CULPEPPER, Defendant-Appellee.
    No. 5486.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 12, 1976.
    Rehearing Denied Sept. 28, 1976.
    Writ Granted Dec. 8, 1976.

      Larry McCollum, Shreveport, Tillman & Mitchell by F. Clay Tillman, Leesville, for plaintiff s-appellants.
    Gahagan & Gahagan, by Russell E. Gaha-gan, Natchitoches, for defendant-appellee.
    Before HOOD, WATSON and PETERS, JJ.
   HOOD, Judge.

Plaintiffs, Mrs. Laura Claudette Culpep-per Russell and Armstrong R. Conley, seek a judgment decreeing two acts of sale of immovable property to be simulations or donations in disguise, and ordering defendant, Louis L. Culpepper, to account for revenues and fruits received by him from the property affected by those acts. Judgment was rendered by the trial court rejecting plaintiffs’ demands and dismissing the suit. Plaintiffs appealed.

The decisive issues presented are (1) whether the document purporting to be a warranty deed from Claude W. Culpepper to Mrs. Mattie R. Culpepper, dated January 9, 1941, is a simulation, and (2) whether the document purporting to be a warranty deed from Mrs. Mattie R. Culpepper to defendant, Louis L. Culpepper, dated April 9, 1948, is a simulation or a donation in disguise.

Mrs. Mattie R. Culpepper married Rufus Conley prior to 1900, and of that union Armstrong R. Conley, one of the plaintiffs in this suit, was born. Rufus Conley died in 1901, and shortly thereafter Mrs. Mattie R. Culpepper married Claude H. Culpepper. Of that marriage three children were born, one of whom was Claude W. Culpepper, and another was defendant Louis L. Culpepper. The third child of that marriage died in infancy.

On October 3, 1929, during the existence of the community which existed between Claude H. and Mattie R. Culpepper, the said Claude H. Culpepper acquired title by warranty deed to a tract of land comprising approximately 815 acres, located in Ward 9 of Natchitoches Parish, Louisiana. That tract of land is the property which is at issue in this suit.

Claude H. Culpepper died on December 25, 1940, leaving as his sole survivors his widow, Mrs. Mattie R. Culpepper, and his two sons, Claude W. and Louis L. Culpep-per. His succession was opened and a judgment of possession was rendered on January 2, 1941, recognizing his widow and sons as his sole survivors and heirs at law, sending Mrs. Mattie R. Culpepper in possession of an undivided one-half interest in and to the property left by him, sending his two sons in possession of the remaining one-half interest in that property, in equal proportions, and granting to Mrs. Culpepper the usufruct provided by law on the interests inherited by her sons.

On January 9, 1941, or a few days after the above judgment was rendered, Claude W. Culpepper executed a warranty deed which purports to sell and convey to his mother, Mrs. Mattie R. Culpepper, all of his undivided interest in and to the property inherited by him from his father, and particularly his interest in the above 815-acre tract of land. The deed is in the form of an authentic act and it contains the following stipulation relative to the consideration which was paid for the property:

“The consideration for which this sale and transfer is made is the price and sum of $2,500.00, no part of which is paid in cash and the entire consideration being the assumpsite by the vendee of one-fourth of all indebtedness of Claude H. Culpepper, Deceased, which indebtedness is in excess of $10,000.00, but specifically of a certain mortgage held by the Federal Land Bank of New Orleans affecting the said property in the unpaid balance of $9,479.68.”

The above deed, dated January 9,1941, is one of the documents which plaintiffs attack in this suit as being a simulation.

On April 9, 1948, Mrs. Mattie R. Culpep-per executed a warranty deed purporting to sell and convey to defendant, Louis L. Cul-pepper, all of her right, title and interest in and to the above 815-acre tract of land, but reserving to herself the usufruct of all of said property for the remainder of her life. With reference to the consideration paid for the property, the warranty deed provides:

“The consideration for which this sale and transfer is made is the price and sum of Thirty Five Hundred Dollars ($3500.00) cash in hand paid the receipt whereof is hereby acknowledged and discharge given; and other good and valuable considerations.”

The last mentioned warranty deed, dated April 9, 1948, is the second act of sale which plaintiffs contend is a simulation or a donation in disguise.

Claude W. Culpepper (one of the sons of Claude H. and Mattie R. Culpepper) died on June 20, 1955, and all of the right, title or interest which he had or may have had in and to the above tract of land has now become vested in his granddaughter, Mrs. Laura Claudette Culpepper Russell, a plaintiff in this suit.

On January 5, 1972, Mrs. Mattie R. Cul-pepper executed a document entitled “Renunciation of Usufruct,” in which she fully and finally renounced her right of usufruct on the above 815-acre tract of land in favor of defendant Louis L. Culpepper, his heirs, successors and assigns, forever.

Mrs. Mattie R. Culpepper died on November 9, 1973, leaving as her sole and only surviving heirs at law her two sons, Armstrong R. Conley and Louis L. Culpepper, and her great granddaughter, Mrs. Russell. The succession of the decedent, Mrs. Cul-pepper, has never been opened.

The instant suit was filed on March 21, 1975. Plaintiffs contend, first, that although the deed from Claude W. Culpepper to Mrs. Mattie R. Culpepper, dated January 9, 1941, specifies a price, the document itself shows that no consideration was paid. They argue that the sale thus was a simulation and is void.

As we have already noted, the 1941 deed recites that the sale was made for a price of $2,500.00, no part of which was paid in cash, the entire consideration being the assumption by the vendee, Mrs. Mattie R. Culpep-per, of one-fourth of all 'indebtedness of Claude H. Culpepper, deceased, and particularly of the $9,479.68 indebtedness owed to the Federal Land Bank of New Orleans, secured by a mortgage affecting the property described in the deed.

The assumption by the vendee of an existing mortgage affecting the property being sold may constitute a valid price or consideration for the sale of that property. Succession of Viola, 138 So.2d 613 (La.App. 4 Cir. 1962); Bertucci v. Bertucci, 224 La. 364, 69 So.2d 502 (1953); Quinette v. Delhommer, 146 So.2d 491 (La.App. 4 Cir. 1962).

Plaintiffs do not take issue with the above statement of law. They argue, however, that in this case the assumption by Mrs. Mattie R. Culpepper of the indebtedness owed by her husband’s estate to the Federal Land Bank did not constitute a valid consideration for the sale of the property to her in 1941, because Mrs. Culpepper was “already liable in solido” with the vendor, Claude W. Culpepper, for that indebtedness. They take the position that the vendee did not assume an obligation which she did not already owe, and that no consideration thus was paid for the property.

When Claude W. Culpepper accepted the succession of his father, he became liable for the payment of his proportionate part (one-fourth) of the debts owed by the estate. LSA-C.C. arts. 1420, 1427 and 1428. The assumption of his part of that indebtedness by Mrs. Mattie R. Culpepper had the effect of relieving the vendor, Claude W. Culpepper, of his obligation to pay any of that debt. It at least bound Mrs. Culpepper to reimburse him any amount he might be compelled to pay on that indebtedness. Regardless of whether Mrs. Culpepper was personally liable to pay all or a part of the same debt, therefore, her agreement to pay the vendor’s part of it, or to relieve him of his obligation to pay any of it, constituted a valid consideration.

The law is settled that if any consideration, however small, is given for the property, the sale may not be set aside as a simulation. Milano v. Milano, 243 So.2d 876 (La.App. 1 Cir. 1971); Mut v. Mut, 222 So.2d 100 (La.App. 1 Cir. 1969); Kinney v. Kinney, 150 So.2d 671 (La.App. 3 Cir. 1963); Adams v. Trichel, 304 So.2d 740 (La.App. 2 Cir. 1974).

We conclude that the act of sale from Claude W. Culpepper to Mrs. Mattie R. Culpepper, dated January 9, 1941, is a valid sale.

Plaintiffs contend also that the act of sale from Mrs. Mattie R. Culpepper to her son, Louis L. Culpepper, dated April 9, 1948, was a simulation and thus is void. To support their contention that the act was a simulation, they rely on LSA-C.C. art. 2480, which provides:

“In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usu-fruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

The 1948 deed shows that the seller, Mrs. Culpepper, reserved to herself the usufruct of the property which she sold. She continued to live on, and she thus remained in possession of, that property for several years after that deed was executed. Plaintiffs contend that under those circumstances, Article 2480 of the Civil Code applies, and that a presumption thus exists that the sale was simulated. They argue that the burden rests on defendant, the purchaser in that sale, to produce proof establishing the reality of the sale, and that defendant has not met that burden of proof.

The evidence shows that Mr. and Mrs. Claude H. Culpepper lived on the above 815-acre tract of land from the time they purchased it in 1929 until Mr. Culpepper died in 1940. His widow, Mrs. Culpepper, continued to live on the property until her death in 1973.

Louis L. Culpepper, the purchaser in the 1948 deed, also has lived on the same tract of land continuously since it was purchased by his father in 1929. He dropped out of medical school at about the time of that purchase to live with his parents on the newly acquired tract of land and to assist his father in farming and managing it. Louis married Lucille Roge in 1930, and he and his wife immediately established their matrimonial domicile on that 815-acre tract of land. They lived in the same home with Mr. and Mrs. Claude H. Culpepper from 1930 until the elder Mr. Culpepper’s death occurred in 1940. From 1940 until Mrs. Mattie R. Culpepper’s ’ death in 1973, the homeplace was occupied by Mr. and Mrs. Louis L. Culpepper and by Mrs. Mattie R. Culpepper. The seller and the purchaser thus were residing on the property before the 1948 act of sale was executed, and both of those parties remained in possession of it after that sale was completed.

Shortly after Claude H. Culpepper died, Mrs. Mattie R. Culpepper asked her daughter-in-law if she would take over the management of the homeplace. The younger Mrs. Culpepper agreed to do so, and she has managed the home continuously since that time. From 1929 until 1940 defendant, Louis L. Culpepper, conducted farming and cattle raising operations on, the property with his father, and since his father’s death in 1940 he has had complete control of the property. He has farmed it, constructed improvements on it, repaired the improvements, sold timber, paid taxes on the property as they became due, and otherwise has managed that property. He also has made all of the payments which became due on the mortgage indebtedness affecting that property, and eventually he paid the full amounts due on those debts.

Plaintiff Conley and Claude W. Culpep-per were living in Shreveport when Claude H. Culpepper died. Conley explained that it was logical for Louis to take over the management of the property at that time. Conley’s testimony, in part, is that:

“ . . . Louis had lived there all of his life, all of his married life, and he was there on the place and everything that he had was there. I had a job, a piece of a job and I was dabbling around in the oil business. He was the logical man to take over. I was no farmer. Claude was no farmer.”

The evidence shows that Mr. and Mrs. Louis L. Culpepper cared for Mrs. Mattie R. Culpepper from 1940 until her death in 1973, or for a period of about 33 years. They provided her with food, clothing, transportation, medical treatment, hospitalization, and with all of her other needs during that time. The evidence is uncon-tradicted that Mrs. Louis L. Culpepper prepared meals for her mother-in-law, cleaned her room, nursed her and bathed her at times, and otherwise took care of her personal needs. Neither of the plaintiffs, Conley or Mrs. Russell, has lived on the property at any time since 1940, and neither assisted in caring for Mrs. Mattie R. Culpep-per after the death of her husband. The evidence shows that Mrs. Russell’s grandfather, Claude W. Culpepper, did not live on the premises at any time after his father died in 1940, and he did not assist in caring for Mrs. Mattie R. Culpepper after that date.

Although the seller in the 1948 deed, Mrs. Mattie R. Culpepper, reserved to herself the usufruct and remained in possession of the property sold, the evidence makes it clear that the purchaser, Louis L. Culpepper, also continued to live on and to possess that property after the sale was completed.

We think the purpose of LSA-C.C. art. 2480 is to create a presumption that there was no delivery of the property, and thus that there was no completed sale, in a case where the seller reserved the usufruct to himself and thereafter remained in possession of the property which purportedly was sold. We think that conclusion is compelled when Article 2480 is read in conjunction with the preceding article of the Civil Code, Article 2479, which provides that “the law considers the tradition of delivery of immovables, as always accompanying the public act, which transfers the property.”

In Joiner v. Ruark, 174 La. 615, 141 So. 76 (1932), plaintiffs sued to enjoin a creditor from seizing property which she had purchased from her mother. The creditor contended that the sale was a simulation, relying in part on Article 2480 of the Civil Code. The evidence showed that plaintiff and her mother were living on the property at the time of the transfer, and they continued to live on it after the sale was completed. The Supreme Court held that the evidence overcame the presumption of a simulation provided in Article 2480, and that the sale to plaintiff was valid. The court said:

“The fact that Mrs. Ruark remained on the property with her daughter after the transfer does not show that delivery was not made, and, under the circumstances, does not create a strong presumption of simulation. The deed was one by public act. Delivery is deemed to have followed it. Civ.Code, art. 2479. As Mrs. Ruark and her daughter were living together on the property at the time of the transfer, we fail to see how a more effective delivery could have been made, unless it be held, which would be unwarranted, that Mrs. Ruark should have left the place. Any presumption of simulation that might have arisen, under article 2480 of the Civil Code, from the fact that Mrs. Ruark continued to remain on the property after the transfer, is fully overcome, not only by the natural desire of the mother and daughter to continue to live together, but by the entire record. In our view, the transfer was not a simulation.”

In Succession of Rolling, 127 So.2d 292 (La.App. 4 Cir. 1961), a mother sold real property to her daughter, but reserved the usufruct to herself for her lifetime, and thereafter the mother and daughter continued to live together on the property. The Fourth Circuit Court of Appeal held that the presumption created by LSA-C.C. art. 2480 had been successfully rebutted, and that the sale was not void as a simulation. The court said:

“The court feels that the presumption of Article 2480 of the Revised Civil Code is rebutted by the fact that $3,500.00 was paid and also by the additional fact that Miss Bonnie W. Rolling was as much in possession as her mother by living with her mother.”

A similar issue was presented in Succession of Dornier, 240 So.2d 579 (La.App. 4 Cir. 1970). The court determined there, as was held in Joiner and Rolling, that the presumption created by LSA-C.C. art. 2480 had been overcome.

In the instant suit the evidence satisfactorily explains why Mrs. Mattie R. Cul-pepper continued to live on the 815-acre tract of land after she sold it to her son. We do not think it was necessary for her to move off the property after it was sold in order for that sale to be valid. Our conclusion is that an effective delivery of the property to the purchaser was made by the execution of the 1948 deed, and that the evidence overcomes the presumption created by LSA-C.C. art. 2480.

Plaintiffs contend, however, that the evidence fails to show that the consideration stipulated in the 1948 deed was paid.

Louis L. Culpepper testified that he paid the recited price of $3,500.00 to his mother, in cash, at the time the deed was executed, but that the payment was made out of the presence of the notary and witnesses. He stated that his wife had inherited some money, and that he obtained most of the funds he needed for the purchase from her. Mrs. Louis L. Culpepper confirmed the fact that she had inherited some money from her parents, and that she turned all of it over to her husband. She testified that she gave him between $3,000.00 and $5,000.00 in 1930. In the deed itself, Mrs. Mattie R. Culpepper acknowledged that that amount had been paid to her, in cash, by the purchaser. And, the trial judge obviously concluded that the consideration had been paid, since he found that the 1948 deed was not a simulation or a donation in disguise.

Plaintiffs argue that it is unlikely that the recited consideration was paid, since defendant produced no receipt, no cancelled check, no bank statements and no witnesses, other than his wife, to corroborate his statements. The record also contains no evidence tending to show what Mrs. Mattie R. Culpepper did with the money after she allegedly received it.

Despite the persuasive arguments made by plaintiffs, we have concluded that there is sufficient evidence to support the conclusions obviously reached by the trial judge. We have observed many times that the factual findings of the trial judge are entitled to great weight, especially when the credibility of witnesses is involved, and that his conclusions as to the facts should not be disturbed unless found to be clearly erroneous. We thus concur in the apparent finding of the trial court that the cash consideration recited in the 1948 deed was paid.

Plaintiffs contend, alternatively, that the consideration paid to the seller in the 1948 deed was less than one-fourth the value of the property at the time of the sale, and that the purported conveyance thus was a donation in disguise. They rely on Article 2444 of the Civil Code, which provides:

“The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

In determining whether the price paid was less than one-fourth the value of the immovable sold, both the price and the value of the property must be determined as of the time of the sale. Estate of Schwegmann, 298 So.2d 795 (La.1974).

The evidence establishes that the 815-acre tract of land involved in the instant suit had a value of $43.26 per acre, or a total value of $35,256.90, when Mrs. Mattie R. Culpepper sold the naked ownership of her three-fourths interest in that tract to Louis L. Culpepper in 1948. Mrs. Culpepper was 67 years of age at that time and she had a life expectancy of 10 years. According to plaintiffs’ own computations, the total value of the property which was conveyed to defendant by the 1948 deed was $14,765.46. One-fourth of that value amounts to $3,691.36.

Plaintiffs argue that since defendant paid only $3,500.00 for the property conveyed to him, whereas one-fourth the value of that property was $3,691.36 at that time, the price paid by him was below one-fourth of the real value of the immovable sold, and that the sale thus must be held to be a donation in disguise.

Plaintiffs have overlooked the fact that the consideration stipulated in the 1948 deed was not only $3,500.00, which we have found was paid in cash, but also “other good and valuable considerations.”

Defendant testified that in addition to the payment of $3,500.00 in cash to his mother, he also promised as an additional consideration for the sale that he would care for her for the rest of her life. He stated that his promise, as a part of the consideration for the property, was that “I would take care of her, feed and clothe and tend to her every want for money or anything she needed until she died, which I have done diligently and with no help from anyone else.”

The evidence establishes, without contradiction, that Mr. and Mrs. Louis L. Culpep-per cared for defendant’s mother for 33 years, from 1940 until 1973. As already noted, they provided her with food, clothing, transportation, nursing care, medical and surgical treatment, hospital care, and her other needs during that time. Defendant has attempted to place a value on the services which he and his wife rendered for Mrs. Mattie R. Culpepper. It is unnecessary for us to consider these estimates of value, however, because the evidence establishes that the care which they provided for the elder Mrs. Culpepper greatly exceeded the additional consideration which may have been required to constitute more than one-fourth the value of the property sold. We find, in fact, that the value of the services provided by defendant, and his wife substantially exceeded that of the entire tract of land at the time of the sale.

The services which were rendered by defendant and his wife in caring and providing for Mrs. Mattie R. Culpepper from 1940 until the date of her death in 1973 may properly be regarded as consideration for the sale evidenced by the 1948 deed. Kin ney v. Kinney, 150 So.2d 671 (La.App. 3 Cir. 1963); LaBorde v. Dauzat, 158 So.2d 637 (La.App. 3 Cir. 1963); Succession of Viola, 138 So.2d 613 (La.App. 4 Cir. 1962).

In Succession of Viola, supra, the Fourth Circuit Court of Appeal said:

“Services rendered, such as cooking meals, cleaning house, washing clothes, etc., in connection with the case of a helpless old person may constitute consideration for a transfer of property. Robinson v. Guedry, La.App., 181 So. 882.”

We conclude that the consideration paid for the property which Mrs. Mattie R. Cul-pepper sold to defendant on April 9, 1948, was adequate, and that the act of sale executed on that date was not a donation in disguise.

Since we have found that the 1948 sale from Mrs. Mattie R. Culpepper to her son was not a donation, it necessarily follows that there is no merit to plaintiffs’ argument that that transaction was prohibited by LSA-C.C. art. 1533, as that article was worded at the time of the sale.

There also is no merit to plaintiffs’ argument that the 1948 sale was void under LSA-C.C. art. 1497, as being a donation omnium bonorum. We have found that the conveyance was not a donation, and' the evidence does not show that the alleged donor. Mrs. Culpepper, failed to reserve to herself enough for subsistence.

Plaintiffs argue further that defendant should be made to collate under Article 1248 of the Civil Code because the above property was sold to him at “a very low price.” We have already determined that the consideration paid for the property by defendant, including the services rendered for the vendor, was substantial. Regardless of the amount which was paid for the property, however, the law is settled that collation cannot be required until the succession to which it belongs is opened. Until then, the demand for collation is premature. Jackson v. Jackson, 175 So.2d 360 (La.App. 2 Cir. 1965).

Plaintiffs contend, finally, that the trial court erred in refusing to admit or to consider the testimony of plaintiff Conley that his mother told him, about four years after the 1948 sale had been completed, that she had transferred title to the property to defendant so she could get “on welfare.” Although the trial judge sustained defendant’s objection to that testimony, he admitted it under a proffer of proof. It is unnecessary for us to consider the correctness of the ruling of the trial court, because even if the evidence should be admitted and considered it would not affect any of the conclusions which have been reached in this case.

A review of all of the facts convinces us that there was no error in the judgment of the trial court rejecting plaintiffs’ demands and dismissing the suit.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting):

This is a sad situation where one child has taken the responsibility of caring for a parent and the family property for many years and has come to feel (as apparently did the parent) that he is entitled to ownership of all the property after the death of the parent. In my view, it was precisely because of this problem that Civil Code article 2480 provides:

“Art. 2480. In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

Under this article it is incumbent on Louis L. Culpepper to establish the reality of the sale. He testified that the price was paid in cash and the deed recites a payment of cash, but this says nothing insofar as evidence to prove the sale. Something more is called for by the codal provision and, in reviewing the record, I find no proof as to good faith or the reality of the 1948 sale.

An argument is made that, by taking care of the property, managing it, investing his wife’s funds, and, in caring for the mother, Mattie Ruffer Culpepper, Louis L. Culpepper paid for the property. This argument is not valid because Louis L. Cul-pepper and his wife lived on the property, and Louis has failed to establish that the value of his services is greater than the amount he derived from the property. There is an indication in the record that substantial sums were earned from timber production and it is apparent that Louis L. Culpepper and his wife made a large part of their livelihood out of the 815 acres in dispute.

As to taking care of the aging mother, it must not be forgotten that she was living on the property which belonged to her and the funds which Louis L. Culpepper and his wife used to take care of the elderly lady could very well be said also to be hers.

In Louisiana we must continue to guard the rights of forced heirs. The law does not recognize a method of acquiring title to property by taking care of family land and an aging parent. One does not thereby become vested with ownership.

If Louis L. Culpepper expended more in money or services in taking care of this property than he received in payment, then he has a claim against his fellow heirs. However, he has not proved the reality of the sale in 1948.

The trial judge was not manifestly in error in concluding that the 1941 sale from Claude W. Culpepper to Mrs. Mattie R. Culpepper is valid.

Nevertheless, the 1948 sale should be set aside and the rights of plaintiffs, Armstrong Conley and Laura Russell, should be recognized as they would flow from the inheritance situation, absent the sale of 1948. Any remaining claims of Louis L. Culpepper should be reserved to him.

For these reasons, I respectfully dissent.