text:
    STATE of Louisiana v. Almond LOCKETT.
    No. 56197.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Joseph Accardo, Jr., La Place, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gret-na, for plaintiff-appellee.
   MARCUS, Justice.

Defendant, Almond Lockett, was charged by bill of information with the theft, on March 29, 1973, of copper inter-cell connectors, having a value in excess of $100.00. La.R.S. 14:67. Following a trial by jury, he was found guilty as charged and was subsequently sentenced to serve two years with the Department of Corrections. Nine bills of exceptions were reserved during trial. On appeal to this court, defendant assigns Bills of Exceptions Nos. 1, 3, 5, 6, 7, 8 and 9 as the basis for reversal of his conviction and sentence. Bills of Exceptions Nos. 2 and 4 were not briefed nor argued and are therefore considered abandoned.

FACTS

On March 29, 1973, Almond Lockett was employed as a truck driver for Giambellu-cia Construction Company at the Hooker Chemical Company plant. At approximately 5:45 a.m. on that date, a black male was seen leaving the plant in a red open bottom dump truck belonging to Giambellu-cia Construction Company. The truck was loaded with copper intercell connectors. A guard at the main entrance to the Hooker plant was unsuccessful in stopping the truck. The truck proceeded down the side road of the plant to the river road where it turned towards Hahnville. The St. Charles Parish Sheriff’s Office was immediately notified to stop the truck. About an hour later (7:00 a.m.), Lockett and the truck were located behind the levee at the P & L Pit in Hahnville. The truck was empty, but had evidence of scratch marks. Defendant was arrested and taken to the courthouse. At that time, he was charged with unauthorized use of a movable. A search was made of the area to determine if the truck had left the main road. Tire tracks were discovered which led to a grassy area where the copper intercell connectors were found underneath some tin and other debris dumped in a pile along with sand and shell mix of the kind hauled in Lockett’s truck on the previous day. In all, 206 copper intercell connectors were found. These connectors were made of solid copper, weighed between 38 to 40 pounds each and had a total estimated value of $7,273.00. On May 4, 1973, Lockett was charged by bill of information with the theft of these copper intercell connectors.

BILL OF EXCEPTIONS NO. 1

A motion to quash was filed urging that the absence of women on the jury venire violated defendant’s constitutional rights. Reliance for this contention is the decision rendered by the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

The present matter was tried in May of 1974. The Taylor decision was rendered January 21, 1975, after defendant’s conviction. The Supreme Court determined in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) that the Taylor ruling is not to be applied retroactively, as a matter of federal law, to convictions obtained by juries empanelled prior to the date of the Taylor decision. This court has held that, consonant with Daniel, the Taylor ruling would not be applied retroactively. State v. Rester, 309 So.2d 321 (La.1975) ; State v. Devore, 309 So.2d 325 (La.1975). Hence, the motion to quash was properly denied.

BILLS OF EXCEPTIONS NOS. 3, 5, 7 and 8

These bills of exceptions concern the free and voluntary nature of an inculpato-ry statement made by defendant to a police officer shortly after his arrest. Objections were made when testimony was adduced that the oral statement was made by defendant and when the written waiver form (S-5) was introduced into evidence.

Defendant contends that the prosecution has made no showing that the inculpatory statement was given voluntarily. Hence, it is argued that an improper foundation was laid for the introduction of this statement. Defendant further contends that, although he signed the waiver of rights form, he was not fully advised of the consequence of this act.

According to the record, Detective Gig-lio of the St. Charles Parish Sheriff’s Office interrogated defendant at the Hahn-ville Courthouse at 9:45 a. m. on March 29, 1973 (date of alleged crime). Defendant had been arrested and booked about seven-thirty that morning. Outside the presence of the jury, Detective Giglio testified that he fully advised defendant of his rights by reading them from a written form (S-5). This form was then handed to defendant to read. After having read same, defendant was asked whether or not he understood what was in the document to which he replied in the affirmative and signed it. After this occurred, defendant narrated events to Detective Giglio which implicated himself and three others at the Hooker plant. The only other person present at the time defendant was advised of his rights and executed the waiver form was Officer Oubre who corroborated the testimony of Detective Giglio. No rebutting testimony was offered by defendant nor did he take the stand at the hearing when the predicate was laid in order to traverse the testimony of these police officers.

The trial judge found as a fact that the state had affirmatively established that the oral inculpatory statement made by defendant to the police officer was free and voluntary and not made under the influence of fear, duress, intimidation or inducements after defendant had been given his Miranda warnings and had executed the waiver of rights form. In our view, the record fully supports these findings by the trial judge. The state has met the burden of proof required by law. Hence, the statement and waiver form were properly admitted in evidence. La.R.S. 15:451, 452. Bills of Exceptions Nos. 3, 5, 7 and 8 are without merit.

BILL OF EXCEPTIONS NO. 6

Detective Giglio, while relating the in-culpatory statement made to him by defendant, began to refer to what defendant stated two white individuals had said to him. An objection made by defendant on the ground of hearsay was overruled. While the content of what the individuals said was not revealed, Giglio resumed his testimony, stating that defendant told him that the two white individuals were to load the truck driven by him, that the next morning defendant was to drive his truck off the Hooker property, and that he would thereafter unload the copper at a designated place.

Hearsay evidence is inadmissible unless subject to one of the exceptions. La.R.S. 15:434; La.R.S. 15:463. Here, the officer was relating the inculpatory statement made to him by the defendant. Hearsay testimony relating to a confession or an admission is admissible under a widely recognized exception to the hearsay rule. See La.R.S. 15:449 et seq.; State v. Butler, 302 So.2d 585 (La.1974); and McCormick on Evidence, Secs. 144, 145 (Cleary Ed. 1972). Hence, the inculpatory statement related to Detective Giglio by defendant was admissible in its entirety, This bill is without merit.

BILL OF EXCEPTIONS NO. 9

After the close of the state’s evidence, defendant moved for a directed verdict of acquittal. The motion was denied, and this bill was reserved.

This court can find error in the trial judge’s denial of a motion for a directed verdict and reverse the conviction only when there is no evidence of the crime or an essential element thereof. La. Code Crim.P. art. 778 (1966); State v. Douglas, 278 So.2d 485 (La.1973).

In the instant case, a truck loaded with copper intercell connectors was seen leaving the Hooker plant on the morning of the theft. An hour later, the same truck with defendant behind the wheel was found by the authorities. Tire marks led the police to a location where the stolen copper connectors were hidden. In his in-culpatory statement admitted into evidence, defendant admitted driving the loaded truck from the plant property on the morning of the theft and unloading same at the place where the copper connectors were ultimately recovered. Certainly, this constituted some evidence of each element of the crime charged. Hence, the trial judge correctly denied defendant’s motion for a directed verdict of acquittal and this bill is without merit.

DECREE

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

      . State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).


source: Caselaw Access Project

author: BARHAM, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Gustavo Quiles GOMEZ.
    No. 56344.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Lawrence B. Fabacher, II, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Robert B. Evans, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gret-na, Keith S. May, Research Atty., for plaintiff-appellee.
   BARHAM, Justice.

Defendant was arrested by customs agents at the New Orleans International Airport when they discovered in his suitcase a green vegetable material, later identified at trial by an expert witness to be marijuana. After being charged, tried and convicted of the crime of possession with intent to distribute a controlled dangerous substance, defendant was sentenced to imprisonment at hard labor for ten years.

On appeal, defendant urges that two bills of exceptions reserved at trial necessitate reversal of his conviction. The first bill relates to the dismissal of a prospective juror by the trial judge ex proprio motu before any of the prospective jurors had been submitted to voir dire examination. The record reflects that as the bailiff was reading the names of those who had been called for jury duty, he informed the judge that one Mrs. Christine Billedeau was present with her baby. The bailiff then told the judge that Mrs. Billedeau had no one to care for the baby and the judge then ruled: “Let the record reflect that the lady was present and she has a small baby and the baby was crying in the court and there isn’t anyone to take care of the child and the court excused the lady.”

Defendant objects that he was not given an opportunity to examine the juror and argues that the trial court should have gone further to determine definitively whether the prospective juror was in fact subject to disqualification on account of hardship. La.C.Cr.P. art. 786 provides in pertinent part:

“The court, the state, and the defendant shall have the right to examine prospective jurors. * * * ”

However, La.C.Cr.P. art. 783 also says in part:

“The court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. The panel shall be selected from the remaining members of the petit jury venire. * * * ”

The apparent conflict between these two Code articles has been resolved by the jurisprudence by allowing the trial judge, within his sound discretion, to release prospective jurors in advance of voir dire examination; the trial judge’s decision in this matter is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Witherspoon, 292 So.2d 499 (La. 1974); State v. Jack, 285 So.2d 204 (La. 1973); State v. Williams, 258 La. 801, 248 So.2d 295 (La.1971).

The interpretation given by the cases is supported by revisors’ comment (b) to La. C.Cr.P. art. 783. The comment, quoted below, indicates that the trial judge is to be vested with discretion to dismiss members of the petit jury venire before they are called for examination in a particular case:

“Official Revision Comment
<( * * *
“(b) This article, as well as the source articles, contains a near contradiction. That is, there is some conflict between the defendant’s right to have at hand the entire venire, and the court’s authority to excuse a large part of the venire in advance. However, the right of the judge to excuse in advance is essential, since many persons chosen for the venire have valid reasons for being excused. The discretion of the judge must be relied upon to avoid abuse, and abuse is reversible error.
« * * * »

Defendant has failed to establish that the facts of the instant case demonstrate an abuse of discretion by the trial judge. The prospective juror, Mrs. Bille-deau, was forced to bring her infant to the courtroom in order to appear when summoned for jury duty. From the record it appears that the child’s crying was disruptive to the jury selection proceedings and certainly would have been intolerable during trial. The judge ascertained through the bailiff that Mrs. Billedeau had no one to care for the child during the trial. These facts convince us that the trial judge did not exceed the bounds of proper discretion in dismissing the prospective juror.

As additional support for his first bill of exceptions, defendant cites article I, § 17 of the Louisiana Constitution of 1974. Apparently, his contention is that this provision supercedes La.C.Cr.P. art. 783 and the jurisprudence cited above. Section 17 lists among the rights of the accused, the following:

“ * * * The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. * * * ”

We find no merit in defendant’s position. Absent specific language to the contrary, it is reasonable to conclude that the drafters of the constitution intended to do no more than to enshrine into the highest law of the state the defendant’s statutory and jurisprudential right to fully examine prospective jurors after the pidge has initially dismissed those clearly incapable of serving. This reading of the provision is entirely consistent with Professor Hargrave’s comments on its import:

“The new provision continues the prior guarantee of a right to challenge jurors peremptorily, the number of challenges to be fixed by law. The innovation in the jury selection process is the grant of the right ‘to full voir dire examination of prospective jurors’ to an accused. The purpose of the provision is to continue the traditional Louisiana practice of allowing the defense to examine prospective jurors at some length, as indicated by the provision for a full examination. It prevents adoption of a jury selection procedure as used in the federal system where the defense’s ability to examine prospective jurors can be substantially circumscribed by the judge.” L. Hargrave, The Declaration of Rights of the Loiiisiana Constitution of 1974, 35 L.L.Rev. 1 at 57. (Emphasis added.)

There is no merit in the first bill of exceptions.

In his second bill of exceptions, defendant complains that the trial judge erred in admitting the testimony of the State’s expert witness, who testified that the substance recovered from defendant’s suitcase at the time of his arrest was marijuana. The expert, Mr. Milton Dureau, Jr., graduated from Tulane University in May, 1973, with a Bachelor of Science Degree in chemistry. Three months later, he began work at the Southeastern Crime Laboratory and continued his employment there until the time of the trial of this case. Dureau testified that he had conducted over two thousand experiments to test the chemical composition of substances alleged to be narcotic and that he had appeared as an expert witness in other criminal cases.

La.R.S. 15 :466 provides :

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

Whether a witness offered by one of the parties qualifies as an expert is a question of fact to be decided by the judge. He has wide discretion to accept or reject the witness’ qualifications, and his decision in the matter will not be disturbed on appeal absent manifest error. State v. Ledet, 298 So.2d 761 (La. 1974); State v. Richmond, 278 So.2d 17 (La.1973); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971).

Once again, we find no abuse of discretion by the trial judge in accepting Mr. Dureau as an expert in chemical analysis of narcotics. The expert’s qualifications and experience support the court’s ruling and thus we find no merit in the second bill.

For the reasons assigned, we affirm defendant’s conviction and sentence.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. David DRAKE.
    No. 56298.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Ronald G. Coleman, Ruston, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

David Drake was charged by bill of information with the crime of forgery in violation of La.R.S. 14:72. Defendant waived his right to a trial by jury. After a judge trial, he was found guilty and was subsequently sentenced to serve four years at hard labor. On appeal, defendant relies upon two assignments of error for reversal of his conviction and sentence.

FACTS

On Friday, September 13, 1974, David Drake drove his 1964 model blue Oldsmobile to one of the drive-in windows of the West California Branch of the Ruston State Bank. He presented a check for cashing to Jerry Alexander, assistant branch manager, who was assisting the tellers at the time. The check was dated September 12, 1974 and was in the amount of $65.00. It was made payable to and endorsed by Lee Doss. The purported maker of the check was Carl Byrd, and the check was drawn on the Ruston State Bank and Trust Company. Alexander cashed the check for defendant and wrote the license number of his automobile on the reverse side of the check. On Monday, September 16, defendant appeared at the bank again for the purpose of cashing another check. Alexander recognized defendant and attempted to detain him while he called the police; however, defendant ran and escaped in his car. Drake was apprehended later that day and charged with the crime of forgery.

ASSIGNMENT OF ERROR NO. 1

Defendant urges in this assignment of error that the trial judge erred in permitting the alleged forged check in evidence at trial. The basis for this complaint is that the state failed to establish an adequate chain of custody. Specifically, it is argued that the state should have called as a witness the police officer who allegedly had possession of the check up to the time it was offered in evidence.

There is no merit to this contention. In State v. Isaac, 261 La. 487, 499-500, 260 So.2d 302, 306 (1972), we stated:

Before the admission of an object in evidence, a foundation must be laid showing that it is related to the case. The foundation testimony may consist of visual identification of the object by witnesses or by establishing a continuous chain of custody from the seizure of the object to its introduction in evidence at the trial. For admission, it suffices if the testimony establishes that it is more probable than not that the object is connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
A lack of positive identification goes to the weight, rather than the admissibility, of the evidence. Ultimately, connexity is a matter for the jury, [citation omitted]

(Emphasis added.)

See also State v. Dotson, 260 La. 471, 256 So.2d 594 (1971) to the same effect.

Therefore, evidence of the chain of custody of the object is not essential where the identification can be made by testimony at trial that the object is the one related to the case. In the instant case, Jerry Alexander, the bank’s assistant branch manager to whom defendant negotiated the check, made a positive identification of the check as the one he cashed for defendant on the day in question. On the reverse side of the check was the license number of defendant’s car, written thereon by Alexander himself.

In view of this positive visual identification, the trial judge correctly admitted the check in evidence. Clearly, it was more probable than not that the check was the one related to the case. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred when he denied his motion for a new trial. Defendant alleged in his motion that “[n]ew evidence has been uncovered which was not available nor had been determined at the date of the trial. This evidence consists of testimony of Maxwell Green and will corroborate the testimony of Charley Dunn, which was elicited at the trial.”

Apparently, this motion was based on ground 3 of article 851 of the Code of Criminal Procedure, which provides :
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, w.as not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
Article 854 of the Code of Criminal Procedure states:
A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish; and
(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.
The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.

Defendant’s contention that this “new evidence” was not discovered and available to him at the date of trial is not substantiated by the record. Defendant’s alibi witness, Charlie Dunn, testified that he discussed the details of the case with defense counsel immediately prior to trial. In relating the events which transpired on the date of the alleged crime, Dunn testified that defendant drove him to Monroe in order that he might get $10.00 from his employer, Maxwell Green. After getting the money, they drove to an establishment where they drank beer and talked with some friends until about six or seven o’clock that evening. They then drove back to Dunn’s home in Dubach where they continued to drink beer. Defendant took the stand in his own behalf and testified generally to the same effect. It is obvious from this testimony that the existence of Maxwell Green was known to defendant prior to trial. Hence, it can hardly be said that this was “new” evidence “not discovered before or during the trial.” Likewise, there has been no showing of the exercise of “reasonable diligence” by the defendant. Additionally, defendant made no application for a continuance prior to trial nor did he request a recess during trial. Finally, in view of the strong evidence against defendant, it is highly improbable that the corroborative testimony of Green would have changed the judgment of guilty. La.Code Crim.P. arts. 851(3), 854 (1966).

Under these circumstances, we are unable to say that the trial judge abused his discretion in denying defendant’s motion for a new trial.

DECREE

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


text:
    STATE of Louisiana v. Willie CLARK.
    No. 56212.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Murphy W. Bell, Director, Vincent Wilkins, Jr., Trial Atty., Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., M. Stephen Roberts, Asst. Dist. Atty., for plaintiff-appellee.
   BARHAM, Justice.

Defendant was convicted upon his plea of guilty of felony theft of a thing of a value of five hundred dollars or more and was sentenced to eighteen months in the Parish Jail. On this appeal, defendant urges reversal of his conviction and sentence, relying on one assignment of error, based on the trial court’s denial of his motion to withdraw his plea of guilty. Finding no abuse of discretion in the trial court’s refusal to allow defendant to withdraw his plea of guilty, we affirm the conviction and sentence.

Defendant originally entered a plea of not guilty to this charge of theft and waived his right to trial by jury on the date of the entry of that original plea. The defendant later withdrew his waiver of the right to a jury trial and trial was begun before a jury. At the conclusion of a recess during trial the attorney for the defendant announced to the trial judge that defendant wished to change his plea of not guilty to a plea of guilty. Ascertaining from the defendant that the announcement reflected his wish, the trial court ordered the defendant sworn and examined him regarding his understanding of the rights he waived by the entry of a plea of guilty. The trial court further determined that the defendant’s plea was neither coerced nor involuntarily tendered, and that it was freely and voluntarily made. After a painstaking examination during which the trial court required the defendant to acknowledge that he was aware of and understood that he was relinquishing his rights to a jury trial and confrontation of the witnesses against him, his privilege against self-incrimination, and other valuable defense rights, the trial court announced that it accepted the change of plea. Upon the trial court’s announcement, the State notified the court that it had no intention of charging the defendant with any of the other crimes for which he was booked at the time of his arrest on the theft charge. The trial court deferred sentencing until a later date, ordered the jury ■ brought back to the courtroom, announced the defendant’s change of plea and dismissed the jury. Subsequently, the date of sentencing was deferred twice more; then, on the date set for sentencing, the defendant, through his counsel, orally moved to withdraw his guilty plea, whereupon the court further deferred sentencing for a week. Ultimately, on the final date set for sentencing, counsel for defendant urged the motion to withdraw the guilty plea (which had been supplemented by a written motion filed after the date of the oral motion), stating that the defendant wished to withdraw his plea of guilty “ * * * based upon a misunderstanding that we had between the District Attorney’s Office on the charges, this charge and other pending charges.” Immediately upon defense counsel’s oral statement of the basis for the motion, the trial court denied the motion and the defense reserved a bill of exceptions to that denial.

La.C.Cr.P. art. 559 provides, in pertinent part:

“The court may permit a plea of guilty to be withdrawn at any time before sentence.” (Emphasis supplied.)

The jurisprudence interpreting that provision dictates that the withdrawal of a guilty plea is a matter which addressed itself to the sound discretion of the trial judge. See, e. g., State v. Robinson, 311 So.2d 893 (La.1975). Hence, the only issue before us for determination is whether the trial judge abused his discretion in refusing to allow the defendant to withdraw his guilty plea.

Defendant argues that his confusion regarding what crimes the District Attorney had charged and what crime to which he was pleading guilty rendered his guilty plea unknowing. Additionally, he argues that the trial court abused its discretion in failing to allow withdrawal of his guilty plea by its failure to determine for the record that there existed a factual basis for each of the elements of the crime charged. This factual basis, defendant contends, is required by the United States Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L. Ed.2d 274 (1969).

Our appellate record does permit a review of this alleged error and the stated bases upon which that error is urged, but only in terms of the standard of review dictated by La.C.Cr.P. art. 559 and the jurisprudence. We have previously indicated that there was a lengthy colloquy between the trial court and the defendant prior to the acceptance of the guilty plea. We note, however, that defendant’s complaint regarding the misunderstanding which allegedly existed between the defendant and the State and the confusion which arose cannot be fully reviewed by us on appeal. We find no jurisdictional defects nor errors discoverable upon examination of the pleadings and proceedings. The record does not reveal any basis upon which this Court could find that the trial court abused its discretion in refusing to allow withdrawal of the guilty plea.

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

       The United States Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), holds that waiver of these three enumerated defense rights cannot be assumed from a silent record. In an attempt to comply with the letter and the spirit of Boykin, judges who accept guilty pleas apprise defendants of these rights and ascertain that the defendant understands and wishes to waive them.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Raven J. DARBONNE.
    No. 56103.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      Darrell J. Stutes, J. Minos Simon, Ltd., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   SANDERS, Chief Justice.

The defendant was charged by bill of information with Distribution of Marijuana in violation of LSA-R.S. 40:971. The jury returned a verdict of guilty, and the trial judge sentenced the defendant to serve a term of three years in the custody of the Louisiana Department of Corrections. He appeals, relying upon three bills of exceptions for a reversal of his conviction.

BILL OF EXCEPTIONS NO. 1

Defendant reserved this bill of exceptions after the trial judge sustained the State’s objection to a defense question directed to a 17-year-old witness for the State, Scottie Hebert.

The question and objection are as follows :

“Q You’re not charged of anything as a result of this marijuana deal?
“[District Attorney] If Your Honor please, I object. This boy is a juvenile and going into any juvenile proceedings would not be proper. It would not be allowed.
“The Court: I’ll sustain your objection.”

The,question was avowedly-an effort by the defendant to show that the State had withheld proceedings against the witness, who had received marijuana from the defendant.

In Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court held that in certain circumstances the Confrontation Clause of the Sixth Amendment predominates over state statutes protecting the confidentiality of juvenile court records.

Here, despite the contested ruling, the defense asked and received a negative answer to the following question: “Have you ever been charged with anything?” (Tr. 86). Defense counsel was also allowed to interrogate the witness as to whether he had been promised anything in consideration for his testimony. In the light of the record, we find no basis for applying the doctrine announced in Davis v. Alaska, supra.

We conclude that the bill of exceptions is without merit.

BILL OF EXCEPTIONS NO. 2

The specification of error based on Bill of Exceptions No. 2 is that the trial court erred in denying defendant’s pre-trial motion to produce for inspection and analysis the alleged marijuana involved in the prosecution. The defendant relies upon State v. Migliore, 261 La. 722, 260 So.2d 682 (1972).

The State has replied that no such motion was filed and ruled upon in the case on appeal (District Court Docket No. 30,539); that the proceedings referred to occurred in another prosecution against the same defendant for possession of marijuana, State v. Raven J. Darbonne, District Court Docket No. 30,538. The State further argues that in any event the ruling of the judge only barred an unrestricted delivery of the marijuana to the defendant or his counsel.

We have reviewed the record as supplemented and concluded that the contested ruling did not occur in the case on appeal. The motion was filed and heard in State v. Raven J. Darbonne (Possession of Marijuana) District Court Docket No. 30,538, not in the present case. Hence, the ruling is not reviewable on this appeal.

BILL OF EXCEPTIONS NO. 3

The • defendant reserved Bill of Exceptions No. 3 to the denial of his motion for a new trial. In his assignment of error based on this bill, the defendant alleges there is no evidence of guilty knowledge or intent to distribute a controlled dangerous substance.

Under this assignment of error, our review is limited to determining whether there is some evidence to support the essential intent. See State v. Washington, La., 292 So.2d 234 (1974).

The intent “may be inferred from the circumstances of the transaction”. LSA-R.S. 15:445.

The prosecution witness, Scotty Hebert testified that he met the defendant at “Burger Chef” and that, after accompanying him to the “Pitt Grill”, he receieved a quantity of marijuana from him. Hebert further testified that he owed the defendant $30.00 “because I cut some lids from him”. The expert testimony established that the substance received by Hebert was in fact Marijuana.

We conclude that there is some evidence from which the jury could infer guilty knowledge and intent.

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

DIXON, J., dissents, being of the opinion that there was a violation of the holding of Davis v. Alaska.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Clarence Louis CURTIS, Jr.
    Nos. 56238, 56408.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      G. William Jarman, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Douglas P. Moreau, Asst. Dist. Atty., for plaintiff-appellee.
   BARHAM, Justice.

The defendant was convicted after a trial by jury of theft of a thing of value of $500 or more, a violation of La.R.S. 14:67. Upon conviction the defendant was sentenced to ten years imprisonment. Subsequent to sentencing defendant was adjudged a multiple offender. The ten year sentence was annulled and set aside and defendant was then sentenced, in accordance with the Habitual Offender Law, La. R.S. 15:529.1, to twenty years imprisonment. Upon these appeals, consolidated for argument in this Court, defendant urges four errors as a basis for reversal of his conviction of theft and one error in support of his argument that his adjudication as an habitual offender and the sentence imposed thereon should be reversed. While we find no error in connection with the trial on the merits for the charge of theft and the consequent conviction, we find merit in defendant’s assignment of error relative to the trial court’s ruling upon the habitual offender hearing and the sentence imposed in connection therewith and, accordingly, we set aside that ruling and sentence.

In connection with the appeal from the theft conviction, docketed as No. 56,238, the four errors assigned will be considered seriatim.

ASSIGNMENT OF ERROR NO. 1

This assignment of error complains of the trial court’s action in overruling a defense objection to testimony on behalf of the complainant regarding the value of the item stolen, a 1972 Chevrolet pick-up truck. Defendant contends that the witness’ statement regarding the truck’s value constitutes opinion evidence and, hence, is inadmissible in the absence of a showing that the witness possesses knowledge of the market price and condition of the property.

In State v. McCray, 305 So.2d 433 (La. 1975), we held that absent a showing that the owner lacks knowledge of the value of a movable, his testimony regarding its value is generally admissible; the weight to be accorded such testimony becomes an issue for jury resolution.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In response to a question by the State, a police officer witness began to testify regarding technical aspects of fingerprint analysis. Defendant objected, arguing that since the witness was not qualified as an expert, he was not competent to testify about these specialized matters. Defendant then moved that the officer’s statement be stricken. The trial court declined to strike the statement but proceeded to instruct the jury to disregard the witness’ comment, in view of the fact that he apparently had not been qualified as an expert.

The thrust of defendant’s complaint is that the State interrupted the remarks of the court which encompassed the admonition to the jury, thereby preventing the court from completing its admonition. The following colloquy appears in the transcript and reveals the source of defendant’s complaint :

“[Defense Counsel]:
Your Honor, then I’d like to move that the last statement where Officer Tillman mentioned the number of points that they got in the print, or the number necessary, that that particular portion be stricken. I think prior to that time he was testifying as to what he did.
“THE COURT:
Well, I don’t strike testimony, counsel-lor, but I’ll instruct the jury that since this witness has not apparently been qualified at this point as being an expert, that any testimony tending to indicate any opinion, expert opinion, should be disregarded by you gentlemen, including the witness’ last comment, if it tends to
“Q:
Let me ask you —
“[Prosecutor] :
I’m sorry, Judge.
“Q:
Have you had some fingerprint training? I mean you don’t analyze fingerprints, do you ?
“A:
No, sir.
* * * ”

Thereafter, the witness concluded his testimony, relating the taking of the fingerprints from the truck; no further objection on the part of the defendant appears.

We are of the opinion that the trial court’s prompt favorable ruling upon defense objection and his immediate instruction to the jury to disregard any opinion testimony of the witness was sufficient to cure any error which existed. The State’s interruption which prevented completion of the instruction and the consequent incomplete state of the admonition did not prejudice the defendant so as to warrant reversal of his conviction.

ASSIGNMENT OF ERROR NO. 3

This assignment of error is based on the defendant’s objection made at the time that the trial court denied his motion to suppress an inculpatory statement. Defendant complains that the arresting officers’ failure to apprise him of his rights when they took him into custody in Pla-quemine, Louisiana, before their return to the Auto Theft Bureau of the Baton Rouge City Police Department, rendered the inculpatory statement inadmissible. In brief defendant complains that the fact that he refused to talk to the two officers together tends to show that he did not choose to confess a crime and argues that the two police officer witnesses testified from a report jointly prepared and not from independent personal recollection of the statements made to them. Defendant concludes that these facts show that the State has failed to meet its affirmative burden of proving the free and voluntary nature of the statements.

Defendant is wholly incorrect in his assertion that the mere failure to advise him of his rights at the time of the imposition of custody renders his subsequent statement, given after he was fully advised of his rights, involuntary. Nowhere does defendant contend that any statement used against him was made to the police prior to the time that the officers read the Miranda rights and ascertained that he understood them. Under the circumstances, defendant has failed to show that the trial court erred in ruling his statements admissible.

Defendant’s allegation in brief that the officer witnesses testified solely from their jointly prepared report, and not from independent recollection, wholly lacks support in the record. One of the two testifying officers did state that he had read the report earlier on the day of trial, before coming to court, but there is no indication that the testimony given did not result from personal recollection.

ASSIGNMENT OF ERROR NO. 4

During the State’s examination of a police officer witness, the prosecutor asked a series of questions concerning a coat to which he referred. After the prosecutor asked a few questions about the coat, he attempted to ascertain whether the witness had personal knowledge of how the defendant got the coat. At this point, defense counsel remarked, “Objection, Your Honor. I want to plead surprise to the entry of this particular piece of evidence. I’d like to approach the bench.” (Emphasis supplied.) After an off-the-record discussion between the court and counsel, the prosecutor withdrew the question and tendered the witness. No further objection by the defendant appears in the record; nevertheless, defendant presents this assignment of error, alleging that the trial court committed reversible error when it failed to admonish the jury regarding statements made by the prosecutor about the coat worn by the defendant, “ * * * even though the most damaging question was withdrawn.”

There was no defense request for an admonition of the jury nor do we discover any reason for admonition under La.C.Cr. P. art. 771.

Assignment of Error No. 4 has no merit.

In connection with case No. 56,408, the defendant specifies as error the trial court finding that he was a multiple offender in the face of the State’s failure to offer evidence that he was the same person as the individual whose records were introduced to show defendant’s prior felony convictions.

At the hearing held to determine defendant’s status as an habitual offender, the State attempted to call the defendant to the stand. When the defendant refused to testify, the State argued that it was entitled to the benefit of a presumption that the defendant was the same man whose records reflected the many prior convictions. The State introduced bills of information and certified copies of minute entries which showed that one Clarence Louis Curtis, Jr. had been convicted on thirteen occasions of felonies. Although no other evidence was introduced the trial court determined the defendant to be an habitual offender on the basis of the evidence presented by the State, notwithstanding defendant’s objection that the State had failed to make out a prima facie case against him.

La.R.S. 15:529.1 provides, in pertinent part:

t< * ‡ *
“F. The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.”

Nowhere does it appear that there exists a presumption such as the one so strenuously argued to the trial court in support of the State’s position that the defendant should be adjudged an habitual offender. La.R.S. 15:529.1, subd. F. sets forth the elements of proof necessary for a prima facie case against a defendant charged under the Habitual Offender Law. The State did not offer into evidence any certificate of the warden containing the imprisoned person’s name, photograph and fingerprints, as required by the statute. Considering the State’s failure to prove, in accordance with La.R.S, 15:529.1, that the defendant is the same person as the individual previously charged and convicted in the cases reflected by the evidence presented, we are constrained to reverse that finding and the sentence based thereon.

For the reasons stated, we affirm the defendant’s conviction in No. 56,238 but reverse the trial court’s adjudication of defendant as an habitual offender and the sentence imposed thereon in No. 56,408. The cause is remanded to the trial court for proceedings consistent with the foregoing opinion.


text:
    STAPLE COTTON COOPERATIVE ASSN. v. J. A. PICKETT, Sr.
    No. 56604.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Staple Cotton Cooperative Assn., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 313 So.2d 612.

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


text:
    STATE of Louisiana v. William BREAUX.
    No. 56625.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: State of Louisiana through the District Attorney, Hon. Ossie Brown, applying for Supervisory Writs.

Granted. (See Order)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 10th day of October, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 12th day of December, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. David WALKER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56620.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: David Walker applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ granted. Contrary to the ruling of the trial judge, this court has not considered relator’s appeal. Evidentiary hearing ordered to determine whether or not relator is entitled to relief prayed for.


text:
    TURNKEY CONSTRUCTORS, INC. v. DEWEY, CHEATUM & HOWE, INC., et al.
    No. 56667.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Turnkey Constructors, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 315 So.2d 409.

Granted. Applicant is entitled to rear-gument in the court of appeal under provision of Art. 5, Sec. 8 of La.Const.1974. The court of appeal’s denial of rehearing is vacated, and the matter remanded to the court of appeal for reargument before a five judge panel.


text:
    Maurice S. NEEL v. Tom O’QUINN.
    No. 56605.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Tom O’Quinn applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 313 So.2d 286.

Writ denied. Judgment is not final.


text:
    STATE of Louisiana v. David S. WARD et al.
    No. 56592.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: The Ward-Mcllhenny Group, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermillion. 314So.2d383.

Writ denied. On the facts found, the result is correct.

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


text:
    Ladene K. PENCE v. Dewey Kelley KETCHUM et al.
    No. 56668.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Ladene K. Pence, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 550.

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


author: TATE, J.,

text:
    Marion Paul Craft, widow of Elluis CRAFT v. STATE of Louisiana et al.
    No. 56607.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Marion Paul Craft, widow of Elluis Craft applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 308 So.2d 290.

Writ denied. There is no error of law in the judgment complained of.

TATE, J.,

dissents. If the State is not willing to provide reasonable and adequate personal security for inmates held in Angola, the State should pay the family of inmates for damages they sustain as a result of this fault. See dissent in Parker v. State, 282 So.2d 483, 488 (La. 1973). Under the circumstances, the State has not come forward with an explanation repelling the inference of fault arising from the murder of one inmate in the State’s custody who was helpless to protect himself.

DIXON, J., is of the opinion the court of appeal is in error and the writ should be granted.

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


text:
    STATE of Louisiana ex rel. Philip A. MILES v. C. Murray HENDERSON, Warden, et al.
    No. 56619.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Philip A. Miles applying for Writ of Habeas Corpus.

Writ refused. The showing made is insufficient to warrant the exercise of our jurisdiction.

TATE, J.,

The petitioner alleges his plea of guilty was coerced and without compliance with Boykin. In the absence of a transcribed colloquy contemporaneous with the plea of guilty, he is entitled to an evi-dentiary hearing. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85, (1971). I concur in the denial on the narrow ground that he does not attack as erroneous the minute entry specifically showing Boykin compliance.

DIXON, J., dissents from the refusal; there has been no judicial determination of the allegation. Even under state law applicant is entitled to a hearing. C.Cr.P. 354.

CALOGERO, J., dissents. Petitioner is clearly entitled to an evidentiary hearing on his allegations.


text:
    Dr. Allen JACKSON v. FONTENOT BUILDING, INC. FONTENOT BUILDING, INC. v. Dr. Allen JACKSON.
    No. 56639.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Dr. Allen Jackson, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 516.

Writ denied. Under the facts found by the Court of Appeal, no error in the result.


text:
    Charles Thomas CARLISLE v. Betty Mewborn CARLISLE.
    No. 56650.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In. re: Charles Thomas Carlisle applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Ouachita. 313 So.2d 908.

Writ denied. On the particular facts here, the result is correct.

TATE, J.,

additionally concurs on the ground that the taking of the appeal was tantamount to receiving the notice of appeal. Since thereafter the delays both for taking a new 'trial and for perfecting an appeal expired before this appeal was perfected, it is not timely insofar as the custody judgment.

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

CALOGERO, J., votes to grant the writ.

BOLIN, J., recused.


text:
    Robert Willis MORELAND et ux. v. ACADIAN MOBILE HOMES PARK, INC.
    No. 56660.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In Re: Robert Willis Moreland, Et Ux, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier. 313 So.2d 877.

Writ denied. Under the facts found by the Court of Appeal, we find no error in the result.

TATE, J.,

dissents. Despite the common sense result, the plaintiff landowner is entitled to an injunction to protect his pos-sessory interest. La.Civil Code Art. 667; Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1973).

BOLIN, J., recused.


text:
    Barbara TOMS v. TIGER LANES, INC. and Troy P. Bartlett.
    No. 56643.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Barbara Toms, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 313 So.2d 852.

Writ denied. On the facts found, the result is correct.

BOLIN, J., recused.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Malcolm D. WHITMAN.
    No. 56663.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Malcolm D. Whitman applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 313 So.2d 918.

Writ denied. There is no error of law in the judgment complained of.

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

BOLIN, J., recused.


text:
    Robert Willis MORELAND et ux. v. ACADIAN MOBILE HOMES PARK, INC.
    No. 56661.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In Re: Acadian Mobile Homes Park, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier. 313 So.2d 877.

Writ denied. Under the facts found by the Court of Appeal, we find no error in the result.

BOLIN, J., recused.


text:
    STATE of Louisiana ex rel. John McCORMICK v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56656.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: John McCormick applying for Remedial Writs and Habeas Corpus.

Writ denied. Allegations of the application do not warrant the exercise of our supervisory jurisdiction.


text:
    Mrs. Ruth C. MISTRIC, Ind., etc. v. REPUBLIC NATIONAL LIFE INSURANCE CO. et al.
    No. 56664.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Republic National Life Insurance Co., et al applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 472.

Writ denied. The judgment of the court of appeal is correct.


text:
    STATE of Louisiana v. Hattie MILES.
    No. 56669.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Hattie Miles applying for Writs of Certiorari, Prohibition and/or Mandamus.

Application denied. The trial judge was correct in denying the motion for directed verdict and in denying the mistrial.


text:
    Donald COLLINS v. Carson R. REED.
    No. 56670.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Carson R. Reed, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natch-itoches. 316 So.2d 134.

Writ denied. No error of law.


text:
    Edward Joseph DEVERGES, III, et al. v. Irvin P. BOURG et al.
    No. 56672.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: Edward N. Engolio, Sr. and Lucille G. Engolio applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 558.

Writ refused. There is no error of law in its judgment.


text:
    STATE of Louisiana ex rel. George BRAY v. The Honorable Judge CUNNINGHAM, 10th Judicial District Court.
    No. 56682.
    Supreme Court of Louisiana.
    Sept. 25, 1975.
   In re: George Bray applying for Writ of Mandamus and Habeas Corpus.

Writ denied. The application for habeas in the trial court has been denied. The application here is moot.

DIXON, J., concurs in the denial; the trial judge acted on the habeas corpus, denying it on August 11. •


text:
    Jimmy A. SCOTT v. Ronald J. SYLVESTER.
    No. 56705.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Ronald J. Sylvester applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 318 So.2d 65.

Writ denied.

We find no error in the judgment of the Court of Appeal.


text:
    STATE of Louisiana v. Earl J. HUSSER.
    No. 56937.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
   In re: Earl J. Husser applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. On the facts found there is no showing to warrant the exercise of our supervisory jurisdiction. La.C.Cr.Pr. Art. 230.1(D).

BOLIN, J., recused.


text:
    STATE of Louisiana v. Carrol MATHERNE and Kenneth Matherne.
    No. 56989.
    Supreme Court of Louisiana.
    Oct. 8, 1975.
   In re: Carrol Matherne and Kenneth Matherne, applying for supervisory writs and stay order.

Writ granted. The ruling of the trial court is reversed; the motion to recuse a District Attorney, although covered by the Articles in the Code of Criminal Procedure, is an adversary proceeding — Code of Criminal Procedure, 681, and is not basically a criminal action, nor should it be governed exclusively by provisions of the Code of Criminal Procedure or Title 15 of Revised Statutes.


text:
    STATE of Louisiana v. Edward WILSON.
    No. 56980.
    Supreme Court of Louisiana.
    Oct. 9, 1975.
   In re: Edward Wilson applying for supervisory and remedial writs.

Granted. Severance ordered.


text:
    STATE of Louisiana v. Isaac CAMPBELL, Sr.
    No. 56763.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Isaac Campbell, Sr. applying for writs of certiorari, prohibition, mandamus and For Stay Order.

Granted. Provided that there shall be no interruption in the service of the attorney appointed to represent the indigent.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Denver JACKSON.
    No. 56764.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Denver Jackson applying for writs of certiorari, prohibition, mandamus and stay order.

Granted, . Provided that there shall be no interruption in the service of the attorney appointed to represent the indigent. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Elmo E. Lear, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Joseph P. PHILLIPS, Jr.
    No. 56765.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Joseph P. Phillips, Jr., applying for writs of Certiorari, Prohibition, Mandamus and for Stay Order.

Granted. Provided that there shall be no interruption in the service of the attorney appointed to represent the indigent. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the 19th Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Isaac CAMPBELL, Sr. STATE of Louisiana v. Joseph P. PHILLIPS, Jr.
    No. 56766.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: City of Baton Rouge, applying for writ of Certiorari.

Granted. Provided that there shall be no interruption in the service of the attorney appointed to represent the indigent. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the 19th Judicial District Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Ernest WELLS.
    No. 56767.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Ernest Wells applying for Writs of Habeas Corpus, Mandamus, Prohibition and Certiorari.

Granted. Provided that there shall be no interruption in the service of the lawyer appointed to represent the indigent. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Donald CARRUTH.
    No. 56768.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: State of Louisiana through William J. Guste, Jr., Attorney General applying for writs of certiorari, mandamus and prohibition.

Granted. It is further ordered that there shall be no interruption in the service of the lawyer appointed to represent .the indigent. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Daniel W. LeBlanc, Judge of the 19th Judicial District Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. George CUMMINGS, Sr.
    No. 56780.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: George Cummings, Sr., applying for writs of certiorari, prohibition, mandamus and for a stay order.

Granted. Provided that there shall be no interruption in the service of the lawyer appointed to represent the indigent. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Covington, Judge of the 19th Judicial District Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. George CUMMINGS, Sr.
    No. 56815.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition.

Granted. It is further ordered that there shall be no interruption in the service of the lawyers appointed to represent the indigent. .(See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Covington, Judge of the Nineteenth Judicial District Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Maurice BENNETT.
    No. 57008.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Maurice Bennett applying for writ of certiorari.

Application denied. There is an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Osby BRYANT, Jr., et al.
    No. 56854.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Osby Bryant, Jr., et al., applying for writs of certiorari, prohibition, mandamus and stay order.

Granted. Provided that there shall be no interruption in the service of the lawyers appointed to represent the indigents. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John F. Fant, Judge of the First Judicial District Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Lawrence BATISTE.
    No. 56679.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Lawrence Batiste, applying for writs of certiorari, prohibition, and mandamus.

Writ granted. (See order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Richard B. Williams, Judge of the 10th Judicial District Court for the Parish of Natchi-toches, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Glenn Patrick HALL v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56709.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Glenn Patrick Hall applying for writ of certiorari and habeas corpus.

Writ granted. Out of time appeal is ordered ; the trial court is ordered to appoint counsel for defendant in order to perfect bills and other matters necessary to perfect the appeal.


text:
    STATE of Louisiana v. Jep B. GINN.
    No. 56725.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Jep B. Ginn, applying for writs of certiorari, prohibition and for a stay order.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Raymond S. Bennett, Judge of the City Court of Denham Springs, for the Parish of Livingston, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Eugene J. REDD v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56722.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Eugene J. Redd, applying for writs of mandamus and habeas corpus.

Writ granted. Evidentiary hearing ordered to be held within 30 days of this Order.


text:
    CITY OF NEW ORLEANS v. John WALKER.
    No. 56731.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: John Walker applying for supervisory writs.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Jerome M. Winsberg, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: MORIAL, Judge. PER CURIAM.

text:
    Willis R. FRAZIER v. SLUMBERLINE, INC., and Carl F. Stockmeyer, Jr.
    No. 6838.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearing. Denied Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.
    Edward J. Norton, Jr., New Orleans, for plaintiff-appellee.
    Doyle, Smith & Doyle, Donald W. Doyle, Howard J. Smith, Jr., New Orleans, for defendants-appellants.
    Before SCHOTT, MORIAL and BEER, JJ.
   MORIAL, Judge.

The issue before the Court is the interpretation of an employment agreement between plaintiff and defendant, Slumberline, Inc. (Slumberline). Defendant, Carl F. Stockmeyer, Jr. (Stockmeyer), is the registered owner of 100% of 186 shares of the outstanding stock of Slumberline’s 1000 authorized shares of no par capital stock. Plaintiff entered the employment of Slum-berline on June 1, 1967 pursuant to the terms and conditions of a document drafted by Stockmeyer, the pertinent parts of which read as follows:

“Ray Frazier Proposed Employment
1) Salary at a rate of $2,500.00 per month
i{c ifi ‡ % *
3) Mr. Frazier on start of employment to be given 10% of the stock of the Company. If prior to October 1, 1968 is fired from the Company he will be given a severance pay of $8,000.00. If he resigns prior to Oct. 1, 1968 this free stock to be returned to the Company without compensation for same.
a) If Mr. Frazier resigns after October 1, 1968 he will be paid for this stock the existing book value as of the nearest fiscal closing date minus $700.00 per share.
b) If Mr. Frazier is fired from the company after October 1, 1968, he will be paid the existing book value of the stocck [sic] as of the nearest fiscal clsoing [sic] date.”

After a trial on the merits the district court rendered judgment against Slumber-line decreeing that plaintiff (1) be declared the owner of 20 shares of stock of Slumberline; (2) is entitled to $6,000.00 with interest from judicial demand as severance pay, being $8,000.00 as provided for in the contract less a credit of $2,000.00 previously paid; and (3) is obliged to sell to Slumberline his 20 shares of stock at book value as of September 30, 1968, said book value to be determined after trial of this issue. Defendants appeal.

Defendants argue that plaintiff (1) is entitled to no more than 10% of the stock of Slumberline issued and outstanding at the time plaintiff commenced employment; (2) is obliged to sell the said stock to Slumberline at its book value as of September 30, 1968; and (3) is not entitled to any severance pay.

Plaintiff answers the appeal praying for retention of ownership of the stock given to him at the commencement of his employment and for the judgment to be amended to include Stockmeyer as a soli-darily liable co-defendant.

Stockmeyer died prior to the trial. Except for his answers to interrogatories which are of no evidentiary value in a resolution of this dispute, we have no testimony from Stockmeyer.

Plaintiff’s testimony is that he relied upon certain verbal assurances of Stock-meyer prior to the commencement of his employment after negotiations. There is nothing inconsistent with plaintiff’s testimony and the document introduced into evidence and styled “Ray Frazier Proposed Employment,” except that in fact 186 shares of the capital stock of Slumberline had been issued and not 200 shares as represented by Stockmeyer to plaintiff and recited in that document.

According to paragraph 3 of that document, plaintiff is entitled to 10% of the stock (shareholder equity ownership) of Slumberline. We must decide what number of shares of the capital stock of Slumberline represents 10% of the stock (shareholder equity ownership) at the start of plaintiff’s employment. Since plaintiff was to have a shareholder’s equity ownership of 10%, Stockmeyer’s was to be 90% represented by the 186 shares of capital stock issued and outstanding in his name. Therefore, if 186 shares represents 90% ownership what is 10% ownership? A ten percent shareholder’s equity ownership at the time plaintiff commenced employment would have been represented by 20.66 shares of the capital stock of Slumberline.

We agree with the undisputed finding of the district court that plaintiff’s employment was terminated by Slumberline after October 1, 1968. It is implicit that the shares designated “free stock” to which plaintiff became entitled must be sold to Slumberline in accordance with the provisions paragraph 3b of the agreement. Plaintiff argues that he is given the option to either sell his (free) stock at a stated price or to keep it. Such interpretation violates the clear and unambiguous language as well as the sense and spirit of paragraphs 3a and 3b.

Unless plaintiff was fired prior to October 1, 1968 he has no right to severance pay. Plaintiff argues that he was constructively fired by several letters from Stockmeyer prior to October 1, 1968. Apparently, the district court erroneously reached this conclusion since it awarded severance pay pursuant to section 3. While these letters could be construed as containing expressions evidencing an intention to change the conditions of plaintiffs employment because of a failure to maintain the profit structure of 1966, they did not, under any interpretation of their content, terminate plaintiff’s employment by Slumber-line.

Plaintiff did not treat the agreement as breached by those letters. He continued in Slumberline’s employment and received the salary of $2,500.00 per month, as provided for in the agreement, through October 1, 1968. Therefore, even if the letter of July 26, 1968 were a repudiation of Slumber-line’s promise to pay plaintiff’s salary, such repudiation was in fact retracted prior to performance. It was not necessary for plaintiff to continue in Slumberline’s employment as a condition precedent to a claim if he deemed the agreement was breached by the July 26, 1968 letter. See Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958). Plaintiff remained in the employment of Slumberline until his employment terminated on October 2, 1968 when he refused to accept a change in the terms of his compensation as provided for in the letter of that date. Accordingly, plaintiff has no right to severance pay.

. There is no merit to plaintiffs contention that Stockmeyer is solidarily liable as a co-defendant. Plaintiff contracted with Slumberline not Stockmeyer.

For the foregoing reasons it is ordered, adjudged and decreed that the judgment of the district court in favor of plaintiff and against Slumberline, Inc., in the full sum of $6,000.00 with interest from judicial demand, as severance pay, being $8,000.00 provided for in the contract, subject to a credit of $2,000.00 is hereby reversed; it is further ordered, adjudged and decreed that the judgment of the district court is amended and the plaintiff, Willis R. Frazier, is hereby declared the owner of 20.66 shares of the capital stock of Slumberline, Inc., which shares of stock he is ordered to sell to Slumberline, Inc., at their book value as of the fiscal closing nearest October 1, 1968; it is further ordered, adjudged and decreed that this matter be, and it is hereby remanded for a determination of the book value of said shares of stock in accordance with paragraph 3b of the agreement styled “Ray Frazier Proposed Employment.”

Reversed in part, amended in part, remanded in part.

SUPPLEMENTARY STATEMENT

PER CURIAM.

Plaintiff is to pay all costs.

      . 20.06 shares is arrived at by multiplying 186 by 10 and then dividing it by 90 to obtain the respective number of shares of capital stock required to be owned for a 10% shareholder’s equity ownership.

      . Two letters are pertinent to plaintiff’s position.
      The letter of July 20, 1968 states in part, “ * * * To be very blunt, neither your sales ability nor your sales management ability has been sufficiently demonstrated to carry the weight of our increased sales costs.” It sets forth in detailed narrative and via charts a recap of the profit structure and then concludes:
      “I feel very strongly that our sales effort has been vasily lacking and that entirely too much has been given by this company for too little in return, to the point where this company cannot afford it. IT WAS AN EXPERIMENT OR BETTER AN ATTEMPT TO OO FORWARD.
      “BUT NOW, IT IS COMPANY LIFE OR DEATH. Therefore, as President of this Company, I direct that our sales effort commencing with August 1, 1968 produce an accumulative sales effort of $145,000 per month at 60% cost of materials. Failure to do so will have to result in the immediate reduction of salesmen salaries and or commissions between $25,000 and $40,000 per year. In nowise your working of a territory would alleviate the necessity of your carrying your other duties so very definitely the sales goal must be reached.
      “I repeat that you are of great help in this business but unfortunately the men are not carrying their share of the load, as well evidenced by the chart on page 2 of this letter. “ABSOLUTELY SOMETHING HAS TO GIVE AT ONCE! Either sales UP on [sic] Selling costs down. There is not [sic] alternative to either choice.
      The letter of July 26, 1968 stated:
      “Effective August 1, 1968 your salary will be paid at the end of the month instead of twice monthly, also that payment of salary will be conditional on making a profit. It is pointed out that profit can be made by either selling $145,000.00 per month (shipping same) or by reduction of salesmen’s commissions. Profit will be construed as if your salary had been paid when computing monthly profit, also my salary will be computed in as if covered by the business instead of being a capital withdrawl if profits insufficient to cover same.” The plaintiff signed his name to this letter above the word “acknowledged.”

      . Stockmeyer did nothing violative of the rights of plaintiff as a minority stockholder of Slumberline.

      . Plaintiff was paid $2,000.00 by defendant after his employment was terminated on October 2, 1968. Slumberline’s answer stated this payment was made to give plaintiff the benefit of paragraph 3b. Slumberline makes no claim for its return.


author: PER CURIAM.

text:
    Roy JONES et al. v. Secretary of State, Wade O. MARTIN, Jr.
    No. 10600.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 1975.

      David A. Hamilton, Baton Rouge, for appellants.
    Kenneth C. Dejean, Asst. Atty. Gen. of La., Baton Rouge, for appellee.
    Before BLANCHE, COVINGTON and BAILES, JJ.
   PER CURIAM.

The petitioners-appellants attempted to qualify under the provisions of Acts 1 and 199 of the 1975 Regular Session of the Louisiana Legislature as Democratic candidates for election to the following offices: Roy Jones, Police Jury Member, District B, Winn Parish; Larry M. Doss, Police Jury Member, District B, Winn Parish; Lonnie J. Austin, Police Jury Member, District 3, Ward 1, Winn Parish; Mrs. Archie Jordan, Justice of the Peace, Ward 9, Winn Parish; Samuel E. Carson, Constable, Ward 8, Winn Parish.

The defendant-appellee, Wade O. Martin, Secretary of State of the State of Louisiana, acting in his official capacity, refused to accept the nominating papers of the petitioners, contending they were untimely filed.

Petitioners sought a writ of mandamus to compel the Secretary to place their names upon the ballot for their respective offices in the November, 1975, open election primary, or show cause to the contrary. Subsequently, upon notification that the Secretary of State was proceeding with the printing of the ballots absent the names of the petitioners, the petitioners sought and obtained a temporary restraining order, preventing the printing of the ballots until a decision was made in their mandamus proceeding.

Thereafter, trial was had on the writ, and therein it was stipulated that the nominating papers for all of the petitioners were placed in the United States mail prior to the 5:00 P.M. deadline on August 7, 1975, the last day for qualifying. It was also stipulated that the papers were not received by the Secretary until August 8, the day after closing of qualifications.

The trial judge refused to issue the writ of mandamus and this appeal followed.

The question presented is whether there is a time limit for filing nominating papers pursuant to LSA-R.S. 18:394.1, as enacted by Act 199 of the 1975 Regular Session of the Louisiana Legislature. Act 199 amended certain provisions of the Louisiana Revised Statutes Title 18, as amended by Act 1 of 1975, to provide, with reference to the open election system, an alternate method of qualifying.

Louisiana’s Open Election Law, Acts l and 199 of the 1975 Regular Legislative Session, prescribes essentially three methods by which a candidate may qualify for public office. First, a person who is registered as being affiliated with a political party may file his papers with the officers of his respective party committee, who in turn certify the names to the Secretary of State. Second, a person who is not registered as being affiliated with a political party must file his papers directly with the Secretary of State, and he is, in turn, certified by the Secretary. Third, any person, whether party affiliated or not, may qualify directly with the Secretary by filing nominating papers without paying any qualification fee. It is this third method of qualifying that is before the Court in the instant suit.

The time and date for filing under the first and second methods of qualifying referred to above, are governed by R.S. 18:391. The time and date for the third method are set forth in Section 394.1, sub-paragraph B which reads as follows:

“B. All nominating papers shall be filed with the secretary of state not later than the same time and date on which qualifications close as provided in R.S. 18:386 through 18:390. Any nominating papers submitted thereafter are null and void and shall not be accepted by the secretary of state,”

However, Sections 386-390, referred to in Subparagraph B, contain no reference whatever to time and date of closing.

The trial judge found that the reference in Subparagraph B to Sections 386-390 was an inadvertent error, and that the legislative intent was obviously found in Section 391. The pertinent parts of Section 391 read as follows:

“A. Any person desiring to become a candidate in any primary held under the provisions of this Part, who is registered as being affiliated with a political party shall, not later than 5:00 P.M. on the fifth day after the opening of qualifications for candidates for the primary election, file with the respective officers of the political party with which he is affiliated, written notification of his intention to become a candidate at the primary, accompanied by a declaration under oath that to the best of his knowledge and belief he is a duly qualified elector under the constitution and laws of this state.
“B. (1) Any person desiring to become a candidate in any primary held under the provisions of this Part who is not registered as being affiliated with a political party shall file his notice and declaration, within the same time allowed for candidates affiliated with a political party, with the secretary of state if he desires to become a candidate for any state office that is voted on throughout the entire state. If such person desires to become a candidate for an office other than a state office voted on throughout the entire state, he shall file his notice and declaration, within the same time allowed for candidates affiliated with a political party, with the president of the board of supervisors of elections for the parish or parishes in which the office is to be voted on. In the event that an office is to be voted on in more than one parish, the notice and declaration shall be filed with the president of the board of supervisors of elections for the parish wherein such person is registered to vote, and a copy of same shall be mailed to the board of supervisors of elections in each of the parishes in which the office is to be voted on.
“(2) The filing of the notice and declaration under this Subsection B may be by delivery in person to the secretary of state or the president of the board of supervisors of election or by certified or registered mail. If the filing is made by mail, the date and time of mailing shall be considered as the date and time of filing.”

The trial judge then concluded that Sub-paragraph A of Section 391 controlled, as it pertains specifically to party-affiliated candidates, and held that the deadline for the petitioners was 5:00 P.M. on August 7, 1975, by filing in person with, the Secretary. Since the papers. filed by the petitioners were not received by the Secretary until August 8, he refused to mandamus the Secretary to include the petitioners’ names upon the ballots.

We agree that it was inadvertence for the Legislature to refer to Sections 386-390. Nowhere in R.S. 18:386-390 is there a reference to time and date for qualifying, but in R.S. 18:391 such a prescription is provided.

Therefore, upon finding that the Legislature erroneously cited that portion of the Revised Statutes to which it obviously intended to refer for time and date, it is our obligation to correct this error in order to make the nominating papers procedure effective.

LSA-R.S. 1:5 provides:

“Clerical and typographical errors in the Revised Statutes shall be disregarded when the meaning of the legislature is clear.”

In State v. Rogers, 148 La. 653, 87 So. 504 (1921), the State appealed the judgment of the trial court sustaining a demurrer to the affidavit by which the defendant was being prosecuted. In the demurrer the defendant pleaded that the statute was unconstitutional and that the section purporting to impose a penalty was confusing and without effect.

The Court said:

“We will consider first the question whether the language of the statute is so confusing that the penalty cannot be imposed. There are several clerical or typographical errors in the act, as printed, and, in some respects, the meaning or object of the law is not plainly expressed. But the errors are not pertinent to the main object or purpose of forbidding the selling of second-hand or used automobiles except by an authentic act of sale or transfer, accompanied by evidence of the seller’s title. For example, in the third section of the law, the expression ‘a complete claim of title’ was manifestly intended to read ‘a complete chain of title.’ In the same section, the word ‘three’ was manifestly intended to be ‘two,’ in the expression ‘which affidavit shall contain the data, as nearly as possible, required in section three of this act.’ As a matter of fact, there is no data required in section 3 of the act. As the affidavit required by section 4 is merely a substitute for the authentic copy required by section 2, there is no doubt that the data referred to in section 4 is the data required by section 2. Verbal inaccuracies or clerical errors in the use of words or numbers in a statute may be recognized and corrected by the courts whenever necessary to carry out the manifest intention of the Legislature, as gathered from the context of the act. * * * ” (State v. Rogers, 87 So. at 506)

We conclude that the time and date for filing by those candidates using the statutory provisions for filing by use of nominating papers is governed by the provisions of R.S. 18:391.

Section 391 establishes a 5:00 P.M. deadline for both the party affiliated and non-party affiliated candidates. In fact, both parties conceded the same during oral argument. In Jumonville v. Jewell, 317 So. 2d 616, decided by this Court on August 22, 1975, and unreported, we held that Subsection A required that the party candidate file his papers by actual delivery to his chairman before S :00 P.M., therefore, strictly interpreting the key word “file.”

Subsection B(l) of Section 391 provides that a non-party affiliate must also file by 5:00 P.M., but Part (2) of Subsection B declares that for the independent filing by mail “the date and time of mailing shall be considered as the date and time of filing” (emphasis added).

Part (2) was added to Subsection B in obvious response to the long line of cases that have held that the word “file” means that point at which “the recipient has received custody of the document,” Reilly-Benton Co., Inc. v. Liberty Mutual Insurance Company, 278 So.2d 24 (La.1973). See, also, McGee v. Southern Farm Bureau Casualty Insurance Company, 125 So. 2d 787 (La.App.3rd Cir. 1960), certiorari denied March 13, 1961, but unreported.

Under the foregoing interpretation of the word "file” in Part (1), the independent candidate would, therefore, be required to deliver the papers into the physical custody of the Secretary of State by 5:00 P.M. However, the Legislature chose to modify that requirement by the addition of Part (2), thereby allowing the time of mailing to be considered as the time of filing.

In the case before us, the Secretary of State did not receive the nominating papers from the prospective candidates until after the acknowledged 5 :00 P.M. deadline of Section 391.

R.S. 18:394.1, subd. B provides:

“B. All nominating papers shall be filed with the secretary of state no later than the same time and date on which qualifications close as provided in R.S. 18:386 through 18:390. Any nominating papers submitted thereafter are null and void and shall not be accepted by the secretary of state.” (Emphasis added)

As we previously noted, the time and date referred to in Subsection B is 5 :00 P.M. on the fifth day after opening of qualifications. Therefore, all nominating papers must be “filed” by 5 :00 P.M. on the fifth day. Under the Reilly-Benton Company line of cases, this means received before 5 :00 P.M. by the Secretary of State. We point out that Subsection B does not contain a clause similar to Part (2) of Section 391, subd. B and, therefore, depositing in the mails by 5:0Q P.M. cannot be considered as the date and time of filing for nominating papers.

As Subsection B declares that any nominating papers submitted after the specified time and date are null and void, the Secretary of State was correct in refusing to certify the petitioners for the respective offices they sought.

For the above reasons, the judgment of the trial court is affirmed, at appellants’ cost.

Affirmed.