author: WALKER, Justice.

text:
    Eddie PRESLEY v. STATE of Mississippi.
    No. 48726.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Rehearing Denied Dec. 8, 1975.
    Stone & Graham, Thomas L. Segrest, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, INZER AND WALKER, JJ.
   WALKER, Justice.

The appellant was indicted and convicted of robbery in the Circuit Court of Lowndes County, Mississippi, and from a sentence of twelve years in the State Penitentiary, he prosecutes this appeal. We affirm.

The relevant facts disclosed by the evidence were as follows: Ize Curry, the victim, stated that he and his two sons were out for a walk on July 4, 1973, when they met the appellant and three male companions who began to follow them; that the appellant Presley picked up an iron milk crate, grabbed Curry by the collar, and demanded that Curry give him $2.00; and when Curry refused, appellant hit him on the side of the head with the milk crate and beat him in the face with his fists rendering the victim unconscious. Curry testified that upon regaining consciousness, the appellant was sitting on him with his fingers about his throat and going through his pockets. Curry stated that the appellant took his wallet.

Robert and Chris Curry, the victim’s sons, corroborated the testimony of their father, with Chris Curry adding that he saw the appellant divide the money from his father’s wallet with his companions.

The appellant, taking the stand in his own behalf, testified that one of his companions, Johnny Ray, became engaged in an argument with Ize Curry; that he (appellant) grabbed Curry by the collar while Ray hit him from behind knocking Curry to his knees. The appellant related: “I got down on the man. I hit him, too, for nothing, no reason at all. I hit him. I hit him three times, not with my fists, not with a drink carton. No one else hit him with a drink case.”

The appellant testified that he did not know who took Curry’s wallet, denied taking any money, insisted that he was not given any share of it, and that he did not ever intend to rob Curry.

The appellant assigns as error the lower court’s refusal to grant his requested Instruction No. 8. This instruction reads as follows:

The Court instructs the jury for the defendant that if you believe beyond a reasonable doubt from all the evidence in this case that the defendant, Eddie Presley, struck Ize Curry, without provocation, and not in necessary self defense, then you shall find the defendant, Eddie Presley, guilty of assault and battery.

Mississippi Code Annotated section 99-19-5 (1972) provides:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may. find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

The state or the defendant may, in cases contemplated by the statute, request that the jury be instructed pursuant to the above section.

Robbery is defined by Mississippi Code Annotated section 97-3-73 (1972) as follows :

Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

It is evident from a reading of the above statute that assault and battery is a lesser-included offense (sometimes referred to as constituent offense) of robbery; and, it is generally so held. Bewley v. State, 247 Ind. 652, 220 N.E.2d 612 (1966); Watkins v. Commonwealth, 287 S.W.2d 416 (Ky.1956); Blanton v. Commonwealth, 265 Ky. 173, 96 S.W.2d 440 (1936); State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582 (1959); State v. Parsons, 18 Ohio App.2d 123, 247 N.E.2d 482 (1969). Also see Anderson v. State, 168 Miss. 424, 151 So. 558 (1934).

However, it is not error for the court to refuse instructions that do not properly state the law demanded by the facts of the case or are misleading or confusing. The appellant’s requested instruction, Number 8, ignored the charge of robbery and the evidence supporting that charge. It would have had the effect of “short circuiting” the charge of robbery and was therefore properly refused.

The method of submitting an instruction dealing with a lesser-included offense varies with each case. In some cases it may be sufficient simply to point out that the lesser offense is the same except for the absence of some specific element. In others it may be necessary to include all the essential elements of the included offense as was done for the principal charge. However, the jury should not be instructed as to a lesser-included offense in such a way as to ignore the primary charge as this would be confusing to the jury. It is also true that if the evidence does not justify submission of a lesser-included offense, the court should refuse to do so. Unwarranted submission of a lesser offense is an invitation to the jury to disregard the law.

We have carefully considered the evidence in this case and are of the opinion that no fair-minded jury could have reached any other conclusion than that the defendant was guilty of robbery beyond a reasonable doubt. The case is therefore affirmed.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Charles JACKSON v. STATE of Mississippi.
    No. 48786.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Forrest A. Johnson, Natchez, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, P. J., and PATTERSON and SUGG, JJ.
   Reversed and remanded.

GILLESPIE, C. J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


author: RODGERS, Presiding Justice.

text:
    GULF INSURANCE COMPANY v. Bob PROVINE, Jr.
    No. 48398.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Rehearing Denied Dec. 22, 1975.

      Heidelberg, Woodliff & Franks, Robert T. Gordon, Jr., W. Swan Yerger, Jackson, for appellant.
    Fraiser & Burgoon, Greenwood, for ap-pellee.
    Before RODGERS, PATTERSON and SUGG, JJ.
   RODGERS, Presiding Justice.

The appellee, Bob Provine, Jr., brought suit in the Circuit Court of Leflore County, Mississippi, against the appellant Gulf Insurance Company, a non-resident insurance company doing business in Mississippi, upon a policy of insurance issued to the appellee insuring him against loss or damage to a certain 1973 model Cessna 8 AG Wagon aircraft owned by appellee.

The aircraft was damaged in a sudden ground crash while being flown to fertilize a farm. The owner, Bob Provine, Jr., contended that the aircraft was totally destroyed and could not be safely repaired. The insurance company denied that the aircraft was damaged beyond repair and offered testimony to show that the cost of repair would amount to much less than the full value of the aircraft as set out in the policy.

The jury returned a verdict in favor of the aircraft owner for the full amount of the liability set out in the insurance policy. The appellant Gulf Insurance Company has appealed to this Court and now contends that the trial court committed a reversible error in permitting the expert witnesses for the appellee to testify that, in their opinion, certain tubular framework of the aircraft was bent because the skin covering of the aircraft was wrinkled, when the fact could have been ascertained by a removal of the engine and cockpit covering; that in fact the covering was removed and the tubular frame was not bent. It is, therefore, argued that the testimony offered by the plaintiff should have been excluded and a directed verdict entered in favor of the insurance company.

We have examined the record, testimony, the many photographs and the authorities cited by appellant and appellee, and have reached the conclusion that the expert testimony offered by appellee, Provine, was admissible in evidence before the jury. One of the expert witnesses for the defendant admitted that there were wrinkles in the skin of the aircraft. The appellee testified that this witness told him that when certain pressure was removed that the situation would adjust itself by “snapping back into place.”

The expert witnesses disagreed as to whether or not the door to the aircraft would fit after the accident. They disagreed about the meaning of the wrinkles on the skin of the aircraft, and they disagreed as to whether or not the nose cowling was jammed against the baggage section so that when removed it popped out.

One of the plaintiff’s witnesses, Mr. Stewart Kimmel, a Federal Aviation Administration licensee who had many years of experience as an aircraft mechanic, testified that he examined the wrecked aircraft here involved the next day after the accident in company with one John Ritz, the aviation maintenance and service specialist for Cessna Manufacturing Company. He testified that the doors to the aircraft were sprung, and “would not properly fit,” that on the right-hand side of the plane where the injured wing had “jammed into the ground or bank,” the wing had hit the cabin structure and “wrinkled the skin on the right-hand side.” He said, “Well, anytime you have wrinkling of skin, you have got internal structure damage — this is one thing that a pilot is always taught and everything to look for — .” He said that “the nose cowling was jammed back against the hopper section or the baggage section.” He said that they removed the cowling to inspect the engine and when they did, “it popped out” under quite a bit of pressure. He testified that from the examination he reached the conclusion that the framework or “tubular structure” of the aircraft was damaged, that it would cost from eleven thousand dollars ($11,000.00) to thirteen thousand dollars ($13,000.00) to repair the items mentioned, and that it would cost an additional twelve thousand dollars ($12,000.00) to put the aircraft in a jig to straighten the bent body or tubular structure. He said the aircraft was a total loss.

On cross-examination, this witness admitted that the sides to the body structure were not removed by him to observe the tubular body structure. He said, however, that one could not know whether the tubing was bent unless it was put in a jig, and on reflection, he thought he did remove the right-hand panel but was not positive. He would not assume that there was no .damage to the body structure of the aircraft.

The defendant objected to this testimony and requested the trial judge to grant a directed verdict because he argued that there was no direct testimony that the tubular structure of the aircraft was damaged. The trial court overruled the objection and the motion.

I.

We have detailed the foregoing evidence because the defendant contends that the opinion of the witness was not based on a proper foundation of fact; that before this testimony was available it was essential that the witness’s testimony should afford a reasonably accurate factual basis for his conclusion; and that in the instant case, the testimony does not show that the body or tubular structure was in fact bent, that this could have been established as a fact by simply removing the panels on the sides of the aircraft.

The appellant cites Boston Insurance Co. v. Wade, 203 Miss. 469, 35 So.2d 523 (1948), as authority for this conclusion. In that case, there was evidence that the truck involved was badly damaged. The visible damage would amount to one thousand forty-seven dollars and forty cents ($1,-047.40). The witness said, however, “but that injury might, and probably would show up thereafter not ascertainable without taking the truck to pieces.” 203 Miss. at 473, 35 So.2d at 523. In that case the Court simply held that this testimony was speculative and the Court should have limited the recovery to cost of repairs.

The Wade case is not applicable on this point, because the witness in the instant case testified that the aircraft structure was bent, based upon the fact that the skin was wrinkled. He gave his reasons for his conclusion, and he also testified that the only way to determine whether or not the tubular structure was damaged was to put it in a jig, and he was of the opinion that there was no jig for this particular aircraft design. Generally, the question as to whether or not the opinion of an expert is based on, and supported by, sufficient facts or evidence to sustain it, is a question of law for the court. 32 C.J.S. Evidence § 546(63), at 266 (1964).

It has been said that absolute certainty is not required of an expert witness. It is only necessary that the facts on which an expert relies for his opinion should afford a reasonably accurate basis for his conclusion. It is not necessary that the testimony of an expert witness be capable of demonstration, it is sufficient if his testimony is probably true rather than possibly true, or simple guesswork or conjecture. 32 C.J.S. Evidence § 546(64), at 270 (1964).

Moreover, the qualification of an expert witness to give an opinion as to the value of the damages to the aircraft was largely within the sound judicial discretion of the trial judge. St. Louis Fire and Marine Co. v. Lewis, 230 So.2d 580 (Miss.1970).

A medical heart specialist is not required to operate on a patient before he can testify that in his opinion the patient died of congestive heart failure, and this is true, although a pathologist may later perform an autopsy and testify that the patient died as the result of a cerebral hemorrhage caused by trauma.

The objection of the defendant goes to the weight of the evidence rather than to its admissibility. We hold that the testimony of the witness Kimmel was admissible in evidence.

II.

Having said that, however, we now are confronted with a more serious issue, that is to say, even if this testimony were admissible, was it — coupled with the testimony of the owner of the aircraft — sufficient to present a jury question as to whether or not the aircraft was damaged beyond repair.

The defendant insurance company offered two expert aircraft mechanics, Mr. Bert A. Welch and Mr. Charles Edmond Iliff, who testified that they took the sides off the aircraft and that the tubular structure, or framework of the aircraft, was not bent. Welch examined the tubular structure visually, and Iliff examined it with a straight edge. They pointed out that the engine and cockpit of the aircraft were not damaged. Small pictures of each segment of the aircraft were introduced.

They testified that the aircraft could be repaired so that it would be in as good a condition as it was originally. Mr. Welch testified that the aircraft could be repaired for fourteen thousand dollars ($14,000.00). Mr. Iliff testified that he would repair the aircraft for nine thousand nine hundred eighty-six dollars • and thirty-two cents ($9,986.32). Both witnesses testified that the frame or tubing was not bent and that all parts of the craft could be purchased, and the damaged wing and tail section could be replaced.

The question then is whether or not the testimony of the defendant’s expert witness was merely contradictory of plaintiff’s expert witnesses, or was it of such a nature as to become conclusive in the absence of direct testimony of facts personally known to exist to the expert witness.

In the case of Robertson Bros. v. Mobile & Ohio R. Co., 155 Miss. 198, 124 So. 334 (1929), this Court pointed out that expert testimony of the weights of cattle must be reduced to the cattle in question within the personal knowledge of the witness, as against the record of actual weight recorded on regularly-used and well-accredited scales.

It is a well-settled rule of law that testimony of a witness which is contrary to scientific principle as established by the laws of physics or mechanics is of no probative value.

The general rule is expressed by the text writer in 32 C.J.S. Evidence § 572(2), at 684-687 (1964), as follows:

“Although in some jurisdictions when there is a conflict between scientific testimony and testimony as to facts, the trier of the facts must determine the relative weight, as a general rule proof of facts will outweigh opinions or estimates contrary thereto; and opinion evidence is without weight or probative value when in conflict with the physical facts, and, accordingly, such opinion evidence must give way to uncontroverted physical facts contrary thereto, and should not be regarded as sufficient to create a substantial conflict in the evidence. So, where an expert opinion is not based on facts otherwise proved, or where it assumes facts contrary to those proved, it does not constitute substantial evidence sufficient to create a conflict.
The opinion of skilled or expert witnesses as to probabilities or possibilities does not create a conflict with, or outweigh, positive and uncontradicted factual evidence to the contrary, especially when such opinion is based on an erroneous assumption.
A statement of the result of actual measurement carries more weight than an estimate, at least where conflicting estimates and measurements are offered by the same person, or of chemical, laboratory, or other tests, although it will not necessarily prevail.”

In the case of S. H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650 (1930), this Court in quoting from 1 Moore on Facts, section 415, 22 C.J. 738, 739, said:

“The testimony even of disinterested and unimpeached witnesses on the subjects of measurements, distances, and the like, which is based merely on memory, estimate or casual observation, must yield to that which is based on actual measurement.”

Opinion evidence of an unproven fact must therefore give way to actual mechanical or scientific proof of fact. The Kress case, supra, has been adopted and cited in the following cases: Illinois Central RR Co. v. Underwood, 235 F.2d 868 (5th Cir. 1956); Henson Ford, Inc. v. Crews, 249 Miss. 45, 160 So.2d 81 (1964); New Orleans & N. RR Co. v. Burney, 248 Miss. 290, 159 So.2d 85 (1963); Russell v. Mississippi Central Railroad Co., 239 Miss. 741, 125 So.2d 283 (1960); Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So.2d 912 (1957); Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800 (1938).

The testimony of the plaintiff’s witnesses that in their opinion the tubular framework of the aircraft “must have been sprained or bent,” based upon outside observation must give way to the positive testimony of the inside physical examination of the tubular framework shown by the testimony of the defendant’s witnesses.

We hold that opinion evidence of the plaintiff’s witnesses under the facts here shown, is insufficient to make a jury issue under the claim that the tubular frame of the aircraft was bent or damaged. The trial judge should have granted the instruction offered by the defendant, limiting the recovery to the repairable damage to the aircraft.

The testimony of the defendant’s witnesses shows that piece by piece the aircraft could be repaired. The cockpit section and the engine of the aircraft were not damaged, and, although the aircraft was badly damaged, nevertheless, it could be repaired. The witnesses for the defendant insurance company offered a firm bid to repair the aircraft, and, as was said in Calvert Fire Ins. Co. v. Newman, 240 Miss. 10, 124 So.2d 686 (1960): “[I]t is manifest that the jury in this case was not authorized to find that the car [aircraft] suffered a total loss.” 240 Miss. at 14, 124 So.2d at 688.

An aircraft is a delicate vehicle and susceptible to erratic stimuli. Unless the repair of the vehicle is made so as to re-establish the original design, the aircraft may become dangerous to fly. This is particularly true of a “crop dusting” aircraft which is ordinarily flown a few feet above the crop at a great rate of speed. All of this, however, is for the jury’s consideration in considering the necessary repairs to the aircraft.

We are aware of the many cases holding that this Court will not reverse the verdict of a jury merely because the testimony offered by the appellee was stronger and that the members of this Court would have rendered a different verdict had they been members of the jury. On the other hand, where it is manifest that the jury was obviously mistaken as to whether or not a damaged vehicle could be repaired, it necessarily follows that such verdict based on this mistake was erroneous. Compare Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756 (1937).

We conclude, therefore, that this case must be reversed for a new trial, and submitted to another jury on the issue of the cost of repair necessary to restore the aircraft to its original condition at the time of the suit, less the three thousand dollars ($3,000.00) deductible amount provided for in the insurance policy.

Reversed and remanded.

GILLESPIE, C. J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


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

text:
    STATE of Louisiana v. Ross S. HINKIE.
    No. 56904.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Ross S. Hinkie, applying for writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. Showing made is insufficient to warrant the exercise of our supervisory jurisdiction.

TATE, J.,

concurs, because the trial judge has discretion to have the defendant present at the preliminary hearing if only to preserve confrontation rights for such testimony to be used at the trial on the merits in the event of unavailability of witness. However, if the genuine issue here is to prevent suggestive identification of the accused by prosecution witnesses, the trial court should issue such protective orders as will prevent such suggestive identification.

DIXON, J.,

dissents from refusal to grant. The issue is not whether defendant must be present at preliminary hearing. The record shows that he was present. The issue seems to be whether defendant, protected by constitutional rulings from suggestive identification before trial, must reveal his identity to state’s witnesses at a preliminary hearing, called to establish probable cause. It would be grossly unfair, and ground for reversal in event of conviction, if identity becomes an issue to force the defendant to reveal his identity to his accusers at a preliminary hearing.

CALOGERO, J.,

dissents. The trial court’s ruling effectively permits an imper-missibly suggestive identification and court’s reversal in the event this defendant is convicted and later appeals.


author: TATE, Judge.

text:
    Mamie Alice T. MORRISON v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 56915.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Mrs. Mamie Alice T. Morrison, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge.

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

TATE, Judge.

I respectfully dissent. The Court of Appeal was in error in not considering the lay evidence, Tantillo v. Liberty Mutual Ins. Co., 315 So.2d 743 (La.1975), and I am unable to agree with the majority that, despite the erroneous language, no intermediate court actually did so. Further, although the error was not specifically assigned, the court of appeal erred in not according well over fifty weeks Compensation for permanent loss of function of the hand, La.R.S. 23:1221 (4) (n) even though it found no disability.

D'IXON, J., dissents from refusal.

CALOGERO, J., votes to grant this writ.


author: PER CURIAM.

text:
    STATE of Louisiana v. Barry BALLARD.
    No. 56472.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Crawford A. Rose, Jr., Rayville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

While an appeal from his conviction for second degree murder was pending in this court, the defendant filed a motion for a new trial in the trial court on the basis of newly discovered evidence. C.Cr.P. 851(3). He requested that we remand this case to the trial court for disposition of the motion for new trial, in accordance with C.Cr.P. 853:

“When the motion for a new trial is based on ground (3) of Article 851, the motion ma" be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.”

The record before us does not contain the transcript of testimony, and is, therefore, inadequate to a determination of the merit of motion for new trial.

Therefore the case is remanded to the district court for a ruling on the motion for a new trial.


author: BOLIN, Justice. SANDERS, J., MARCUS, Justice

text:
    Nedra Quida Webb MILLER v. Isaac T. MILLER (Issac T. Miller).
    No. 56163.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      Glenn R. Ducote, Cavanaugh & Ducote, Baton Rouge, for defendant-applicant.
    Patsy Jo McDowell, Law Offices of Patsy Jo McDowell, Baton Rouge, for plaintiff-respondent.
   BOLIN, Justice.

Upon application of Isaac T. Miller, writs were granted by this Court to ascertain the correctness of a decision by the Court of Appeal, First Circuit, relating to summary proceedings by Mrs. Nedra Qui-da Webb Miller (Williams) against her former husband to make executory past due alimony payments to her and support payments to their minor children. 308 So.2d 379 (La.App. 1st Cir. 1975).

The primary question is: where a judgment orders a husband to pay a fixed sum as permanent alimony to his former wife and three minor children, with no proration to each recipient, may the former wife have the entire unpaid balance made exec-utory when one of the children has become fully emancipated since the date of the original support judgment ?

Defendant obtained a final divorce from his wife in 1970. The judgment awarded his wife custody of the three minor children, issue of the marriage, and the husband was ordered to pay $500.00 a month for the support of Mrs. Miller and the three minor children. The judgment did not prorate the amount to be paid as alimony to the wife and the portion to be allotted as child support.

In 1971, one of the children, being eighteen years of age, married and became fully emancipated. In February, 1972, Mrs. Miller remarried and shortly thereafter Isaac Miller ceased making any alimony payments to his former wife or to the children.

On February 20, 1974, Mrs. Miller caused a rule nisi to issue against Isaac Miller, seeking to make executory all past due alimony to her and the children. During these proceedings, it was stipulated the correct amount was $13,250.00 under the terms of the judgment, if the entire amount was in fact due. At the trial on the rule, judgment was rendered in favor of the former wife for one-half of the stipulated amount, or $6,625.00. The trial judge, having observed that no allocation among the recipients was made in the award decree, prorated the monthly award of $500.00 on an equal basis of $125.00 for each recipient. From this judgment the former wife appealed to the court of appeal, which affirmed that portion of the judgment terminating the award to the wife on the basis of remarriage, but reversed the judgment insofar as it terminated the award of the major child in favor of the former wife. The judgment further provided for legal interest from the due date on each installment until paid.

Since the wife has not sought writs from the judgment of the court of appeal, we do not consider the correctness of the ruling which disallowed the past due amount to Mrs. Miller from the date of her remarriage. For the same reason we do not inquire into the validity of prorating the “in globo” award of $500.00 equally among the former wife and the three children.

In considering the question of whether a former wife may, on her behalf, cause a child support judgment rendered during the child’s minority to be made ex-ecutory after the child has reached majority, the following articles of the Louisiana Civil Code are apposite:

“Minors are those who have not attained the age of eighteen years.” La. C.C. art. 37 [as amended in 1972 and 1974 so as to reduce the age from twenty-one to eighteen].
“A married minor below the age of eighteen years has the power of administration of his estate; but he cannot alienate, affect, or mortgage any of his immovable property without the authorization of the court, as provided in Article 373. The authority of the tutor or undertutor, or of the administrator of his estate, of such a minor continues for these purposes after the minor’s marriage until the minor reaches the age of eighteen years.” La.C.C. art. 382.

In interpreting the above articles, our courts have held that when a minor becomes emancipated either by having reached the age of majority, or by marrying after attaining the necessary age, the father no longer owes the obligation of supporting this child as a minor. In other words, one parent may not institute an action on behalf of a child after he has attained majority, in order to enforce a right of support from another parent. Most cases on this question have been originated by a mother bringing an action to increase child support when one of the children has reached the age of majority. In all of these cases, the courts have held that a parent may not institute suit on behalf of a child once this child reaches the age of majority. To the contrary, any such action must be instituted by the child himself, pursuant to La.C.C. art. 229. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). See also Jackson v. Jackson, 275 So.2d 456 (La.App. 2d Cir. 1973); Burks v. Burks, 293 So.2d 923 (La.App. 2d Cir. 1974); King v. Sanchez, 273 So.2d 45 (La.App. 4th Cir. 1973).

Therefore, it seems to be settled jurisprudence that a parent may not assert a right of support against another parent on behalf of a child after the child reaches the age of majority.

Accepting the law and the jurisprudence heretofore set forth, plaintiff contends that the total judgment of support was a property right belonging to her which had become executory under La. Code of Civil Procedure article 3945. She concedes that the husband could have brought suit when the child attained the age of majority to terminate that portion of the alimony due as support payments for that child. Her argument is that, since no such suit was brought, the enforcement of the judgment cannot now be attacked by the father. Indeed, the court of appeal adopted this argument in its holding:

“Since the judgment was rendered in favor of Mrs. Miller, it is her property and she has the right to enforce it, despite the fact that one of the children was emancipated by marriage prior to the time that Mr. Miller stopped making the payments. Further, under the specific provisions of Article 232 of the Civil Code, such a judgment remains in effect until modified by another judgment.” 308 So.2d at 382.

We conclude the argument of plaintiff and that part of the court of appeal holding quoted above is not well founded. The judgment of divorce orders the father to pay unto the mother “for the maintenance and support of the petitioner and the minor children * * Once the child reaches the age of majority, the father does not owe this child any support as a minor. If any support is owed, it is owed directly to the child as a major. No one but the child may enforce this right once he becomes of age. To adopt any other reasoning could lead to chaotic results under the guise of protecting a “vested property right” of the former wife.

It is appropriate to point out that one person may not acquire a “property right” over property or a right that belongs to another. In the instant case once the minor becomes a major he owns both the property and the right, i. e., any support due him and the right to sue for this support.

In summary, we extend the rule of Bernhardt v. Bernhardt, supra, so as to encompass the statement in Burks v. Burks, supra, that when a minor becomes fully emancipated by age or by marriage, his mother may no longer sue for or receive alimony from the father for the support of this child.

Relator also questions the manner in which interest was awarded on each delinquent installment. The trial court and the court of appeal awarded interest from the due date of each installment until paid. Relator contends this ruling is contrary to Viser v. Viser, 243 La. 706, 146 So.2d 409 (1962).

In Viser this Court held that where the original judgment for alimony was silent regarding interest (as in the instant case) the Court could not add interest from due date to a judgment making the past due alimony executory. The Court based its holding upon the premise that a suit to make past due alimony executory is nothing more than a proceeding to judicially fix the amount due and executory under the original judgment, citing Williams v. Williams, 211 La. 939, 31 So.2d 170 (1947); Snow v. Snow, 188 La. 660, 177 So. 793 (1937); and Edwards v. Perrault, 170 La. 1011, 129 So. 619 (1930). From this premise the Court reasoned that it could not add interest to the original judgment since that judgment was silent as to interest, citing Liquidation of Canal Bank & Trust Co., 211 La. 803, 30 So.2d 841 (1947); Factors’ & Traders’ Ins. Co. v. New Harbor Prot. Co., 39 La.Ann. 583, 2 So. 407 (1887); and Succession of Anderson, 33 La.Ann. 581 (1881).

None of the cases cited in the last sentence of the preceding paragraph involve alimony or any other type of indebtedness becoming due periodically in the future. To the contrary, these cases involved debts due at the time of the original judgment. In the instant case, there was no debt due at the time of the original suit. Since the due date of each future alimony payment was fixed in the original judgment, we find interest was properly awarded on each such installment from its due date until paid under the clear language of La.C.C. art. 1938:

“All debts shall bear interest at the rate of seven per centum per annum from the time they become due, unless otherwise stipulated.”

To the limited extent that Viser is contrary to this holding, it is overruled.

The judgment of the court of appeal is amended by reducing the amount awarded to $6,625.00. In all other respects the judgment is affirmed. Each party shall pay one-half of the costs in this Court.

Amended and, as amended, affirmed.

SANDERS, J.,

dissents being of the opinion that the judgment of the Court of Appeal is correct. See 308 So.2d 379.

MARCUS, J., concurs with reasons.

MARCUS, Justice

(concurring).

I am of the opinion that Mrs. Miller is not entitled to receive payments from her former husband for the support of a major child, but for reasons different from those of the majority.

The substantive right of child support, which Mr. Miller was obligated to pay in the judgment, arises under Civil Code article 227, which applies only to minor children. Tolley v. Karcher, 196 La. 685, 200 So. 4 (1941); 1 M. Planiol, Traité élémentaire de droit civil, no. 1682, at 40-41 (La.State L.Inst. transí. 1959). After the age of majority, ascendants and descendants owe reciprocally only the alimentary obligation. La.Civil Code art. 229 (1870). This obligation, unlike the obligation of a parent to support his or her minor child, arises only when the claimant himself, i. e., in this case the major child, proves that he is in need (article 229) and, unlike the support due to a minor child, does not include expenses for education. Id. art. 230. The duty of child support that is owed by all parents to their minor children is extinguished at the age of majority and is substantively distinct from the alimentary obligation. Planiol, supra.


author: DIXON, J., CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Amos EVERSON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56808.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Amos Everson, applying for writ of Certiorari.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction. Applicant was informed of his right to appeal and his right to the appointment of counsel to appeal if he was indigent. See transcript of hearing in trial court.

DIXON, J.,

dissents from denial. Applicant is entitled to an out-of-time appeal. The record shows he wanted an appeal. He was apparently prematurely transferred to Angola before the expiration of time for appeal and could not communicate with court or counsel before the expiration of time to appeal.

CALOGERO, J.,

dissents. Applicant’s contention that he was not made aware, post conviction, of his right to an indigent’s appeal, if he were in fact indigent, was not disproven by evidence at the eviden-tiary hearing.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Abe McFarland.
    No. 56482.
    Supreme Court of Louisiana.
    Nov. 4, 1975.

      Samuel T. Singer, Winnsboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Abe McFarland was convicted of aggravated burglary of the dwelling of G. C. Flint in violation of Article 60 of the Criminal Code, On this appeal he assigns two errors to rulings of the trial judge.

During the trial the District Attorney offered defendant’s inculpatory admission or confession to which defense counsel objected that the oral statements were not freely and voluntarily given as required by Section 451 of Title 15 of the Revised Statutes.

The questioned statements were made to Sheriff Parker. He testified that he first went over the Miranda warnings with defendant point by point, and in addition to reading the warnings he explained them to defendant. He stated that defendant said he understood the warnings. According to the Sheriff, no promises were made to secure a statement, nor were threats made. After explanation of the Miranda warnings, defendant signed a written waiver of his rights and agreed to make a statement. The entire interview took only ten minutes. During this time defendant admitted he entered the Flint home and agreed to direct the officers to the site where he had hidden the weapon he used, a screwdriver. The testimony establishes that he did in fact do this, and the screwdriver was offered in evidence.

The sheriff’s testimony is positive and straight-forward and is uncontradicted. Defendant did not take the stand out of the presence of the jury for the limited purpose of contradicting the sheriff’s testimony. The trial judge who had the opportunity to hear and observe the witness ruled that the statements were free and voluntary. There is no merit to this assignment.

The second assignment of error was reserved to the ruling of the trial judge denying defendant’s motion for a directed verdict.

A review of the evidence convine-ingly demonstrates that there is some evidence with respect to every element of the crime charged. The motion for directed verdict was therefore properly denied. State v. Douglas, 278 So.2d 485 (La.1972). There is no merit to this assignment.

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

      . R.S. 14:60:
      “Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a j)erson is present, with the intent to commit a felony or any theft therein, if the offender,
      (1) Is armed with a dangerous weapon; or
      (2) After entering arms himself with a dangerous weapon; or
      (3) Commits a battery upon any person while in such place, or in entering or leaving such place.
      “Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.”

      . R.S. 15:451:
      “Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Arenta PEEVY.
    No. 56478.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    John R. Joyce, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. 'Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Arenta Peevy was charged by bill of information with the armed robbery of Jerry Sapp in violation of La.R.S. 14:64. After a trial by judge, defendant was found guilty. Thereafter, Peevy was sentenced to serve ten years at hard labor. He appealed his conviction and sentence, relying upon five assignments of error. However, in brief filed in this court, he has withdrawn Assignments of Error Nos. 3, 4 and 5.

FACTS

Four black men, one of whom was Peevy, entered the 7-11 store located on Seventh and Mill Streets in West Monroe, Louisiana, in the early morning hours of January 22, 1975. Jerry Sapp was the sole employee in the store. No purchase was made at this time; however, there was some conversation between Peevy and Sapp concerning the time and the possible purchase of some liquor. Sapp testified that they were in the store for about five minutes on this occasion. The four men left but returned about ten to fifteen minutes later. On their return, Sapp was outside sweeping in front of the store. Two of the men proceeded into the store. They were followed by Sapp who was followed by one of the other men. A purchase was made and when Sapp opened the cash register, Peevy pulled a knife out of a case and held it on Sapp while the other two men removed $67.00 from the two cash registers in the store. The store was well lighted. Sapp testified that the robbery “probably” took less than five minutes. After the departure of the robbers, Sapp reported the crime to the police, giving them a brief description of the four men and the vehicle they had been driving on the first occasion. Within ten minutes of the complaint, the police stopped the vehicle occupied by Peevy and his three accomplices. They were arrested and jointly charged with the armed robbery of Sapp. Subsequently, the charge was severed, and Peevy was separately tried by a judge after having waived trial by jury. The trial resulted in his conviction and sentence to serve ten years.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in denying his motion to suppress an inculpatory statement made by him. It is argued that, since defendant first refused to sign a waiver of rights form and make a statement, a subsequent inculpatory statement made by defendant was inadmissible in evidence in that it was not free and voluntary and was the product of coercion.

At the hearing on the motion to suppress, the state offered the testimony of two police officers, Charles Dortch and Pat Kelly. According to Officer Dortch, he first talked with defendant in his office at the West Monroe City Hall between 2 and 3 o’clock in the morning of January 22, 1975. At this time, he orally advised Peevy of his Miranda rights and then gave him a written copy of these rights on a waiver form. Defendant refused to sign the waiver form and made no inculpatory statement at this time. Dortch next interviewed defendant at the Ouachita Parish jail at about one o’clock on the following afternoon. On this occasion, he was accompanied by Officer Kelly. Defendant was present with his accomplices. He advised Dortch that they wanted to discuss the case. Having already advised the others of their rights, Dortch then advised defendant of his Miranda rights and gave him a waiver form which he read and signed. After conferring together, defendant and his accomplices agreed to tell what happened. They were then transported to the West Monroe Police Station in order that the statements could be recorded on the machine located there and transcribed by Dortch’s secretary. At the police station, Peevy was again advised of his Miranda rights prior to making the inculpatory statement. The entire proceedings were recorded on the machine. Officer Kelly corroborated the testimony of Officer Dortch. No rebutting testimony was offered by defendant nor did he testify at this hearing'.

The record clearly substantiates the findings of the trial judge that the confession made by Peevy at the police station was free and voluntary with no hint of any force, coercion, promise of reward or offer of leniency. It should be observed that when defendant initially refused to sign the waiver form and make a statement immediately after his arrest (in the early morning hours of January 22, 1975), the officers ceased the questioning, and defendant was allowed to return to his cell to sleep. It was not until the afternoon of the next day, around one o’clock, that Officers Dortch and Kelly went to the parish jail to interview the suspects again. The fact of a prior effort to question Peevy did not have the effect of coercing him to sign the waiver form. As aptly stated in Massimo v. United States, 463 F.2d 1171 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973),

The police have the privilege of ‘asking a defendant to reconsider his refusal to answer questions,’ United States v. Collins, 462 F.2d 792 (2d Cir. 1972).

The decision by Peevy to sign the waiver form and make a statement came only after consultation with his accomplices and notification to the police officers that they wanted to tell what happened. Nothing in Miranda prevents an accused party from changing his mind and giving a statement after he has previously declined to do so. So long as the statement was voluntary and intelligently made, it is admissible in evidence. State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972).

In view of the foregoing, we conclude that the trial judge correctly found that the defendant’s confession was freely and voluntarily made and was not the product of coercion or duress after having been fully advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hence, the confession was properly admitted in evidence. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in not suppressing the identification of him made by the victim (Sapp). It is urged that the defendant was first identified by Sapp at the police station after he had been previously informed that someone had been apprehended for the offense. Defendant argues that this out-of-court identification was so suggestive as to taint any in-court identification and thus violate his due process rights.

The evidence adduced at the hearing on the motion to suppress the identification reveals that about thirty minutes after the robbery, Sapp was picked up and taken to the West Monroe police station to make a statement. He had previously been told by his supervisor that four suspects had been picked up. When he arrived at the police station, he was seated in an outer office behind a desk. Shortly thereafter, the police arrived with four black men who walked past Sapp. A few minutes later, Sapp went upstairs to Officer Dortch’s office and again passed the four men who were seated on the bench in the hall. Sapp informed Dortch that the men sitting outside were those who robbed him.

The test of whether the out-of-court identification was to impermissibly suggestive and conducive to mistaken identification that defendant was denied due process of law must be determined by the facts of each case. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). While the practice of showing a suspect singly to persons for the purpose of identification, and not as a part of a lineup, is not favored, a claimed violation of confrontation depends on the totality of the circumstances surrounding it. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Therefore, even if the out-of-court identification was tainted, if the in-court identification had a source independent of the out-of-court identification, the in-court identification does not violate defendant’s due process rights. State v. Payton, 294 So.2d 211 (La.1974); State v. Moseley, 284 So.2d 749 (La.1973); State v. Newman, 283 So.2d 756 (La.1973); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971). In State v. Moseley, supra, citing Newman, we stated that a determination of whether the witness’ in-court identification was based upon an independent source involves these factors: (1) the prior acquaintance of the witness with the accused; (2) length of time the witness observed the perpetrator before, during and after commission of the offense; (3) the circumstances under which the observation was made. This would include illumination at the scene, the physical capacities of the witness and the emotional state the witness was in at the time of observation.

The viewing of the defendant at the police station occurred only thirty minutes after the robbery had occurred. It was inadvertent and not deliberately contrived. The victim, Sapp, clearly saw defendant and conversed with him during the first visit to the store which lasted about five minutes. Within ten to fifteen minutes, defendant returned with his accomplices. It was during this second visit that the robbery took place. The store was well lighted. It was the defendant who held the knife on Sapp at close range. The parties were face to face. The robbery took place over a period of time which Sapp describes as “probably” less than five minutes. At trial, Sapp positively identified defendant as the man who held the knife on him at the time of the robbery. In view of the totality of the surrounding circumstances, we are convinced that the in-court identification of defendant by Sapp was based independently upon his observations made during the robbery rather than upon the confrontations at the police station. Therefore, since the in-court identification had a source independent of the out-of-court identification, the in-court identification did not violate defendant’s due process rights. State v. Bland, 310 So.2d 622 (La.1975); State v. Fortenberry, 307 So.2d 296 (La.1975); State v. Payton, 294 So.2d 211 (La.1974); State v. Baggett, 292 So.2d 201 (La.1974); State v. Moseley, 284 So.2d 749 (La.1973). This assignment of error is without merit.

DECREE

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


author: DIXON, J.,

text:
    STATE of Louisiana v. Kevin C. PETERSON.
    No. 56935.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Kevin C. Peterson, applying for writ of review.

Writ denied. On the basis of the evidence presented, as appears from the transcript, there was a sound factual basis for the stop, investigation and seizure of the narcotics.

DIXON, J.,

dissents from the denial; the trial judge could only find that this stop was made because the officers “became suspicious that perhaps he was driving under the influence of alcohol.” There was no probable cause for the stop and search.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Romalice McGHEE.
    No. 56508.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    James J. Gleason, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Romalice McGhee was charged by bill of information with the crime of simple burglary in violation of La.R.S. 14:62. After trial by jury, defendant was found guilty. He was subsequently sentenced to serve nine years at hard labor. On appeal, he relies on three assignments of error for reversal of his conviction and sentence.

FACTS

During the early morning hours of February 6, 1974, the silent alarm in the cash register of the O and B Barbeque located at 2040 Delachaise Street in the City of New Orleans was activated. The removal of two one-dollar bills from the drawer of the cash register triggers the alarm. As a result, the owner immediately went to the place of business. Notification was also transmitted to the police who proceeded to the premises to investigate the possible burglary. The officers entered the building and found defendant hiding in the attic. Another individual was found on the second floor. A hole had been broken in the ceiling, a cigarette machine had been broken, and various furnishings and equipment had been moved about. The contents of the cash register had been removed. The two one-dollar bills taken from the register were found on the defendant. The serial numbers of these bills were recorded by the owner of the business at the time the burglar alarm was installed, and a record of these numbers was retained by her. Defendant was arrested at the scene of the crime and charged with simple burglary.

ASSIGNMENT OF ERROR NO. 1

Defendant urges in this assignment of error that the trial judge erred in permitting the state to introduce in evidence two one-dollar bills (S—15). The basis of this complaint is that the officer who seized the bills from defendant’s person was not produced in court. Therefore, it is claimed that the state failed to establish an adequate chain of custody.

There is no merit to this contention. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we stated:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

See also State v. Freeman, 306 So.2d 703 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).

Although Officer Hodgman, who removed the two one-dollar bills from defendant at the time of his arrest, was not called by the state, his partner, Officer Merrick Hales, who was present at the time these bills were removed from defendant, did testify. Hales stated that he saw Hodgman take these bills from the right front pants pocket of the defendant. Hales further testified that the serial numbers of the bills introduced correspond with the serial numbers entered into the evidence book by his partner. This officer also identified Hodgman’s handwriting on the evidence card.

The chain of custody of the two one-dollar bills was adequately established by the testimony of Officer Hales. Clearly, it was more probable than not that these bills were the ones related to the case. The failure of Officer Hodgman to testify went to the weight of the evidence and not to its admissibility. Therefore, the trial judge correctly admitted the two one-dollar bills in evidence. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

After the close of the state’s evidence, defendant moved for a directed verdict of acquittal. The trial judge denied the motion, and objection was made. Defendant asserts that the trial judge erred in this ruling.

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, defendant was apprehended in the building where the burglary was perpetrated. Additionally, the two one-dollar bills taken from the cash register were found on defendant’s person. 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. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3.

Defendant urges in this assignment of error that the trial judge erred in denying his motion for a new trial. It is alleged that the verdict is contrary to the law and evidence, and the objections made during trial show prejudicial error.

The latter portion of this motion re-urges the assigned errors heretofore disposed of. It is well established that the allegation by the defendant that the verdict is contrary to the law and evidence presents nothing for our review. La.Code Crim.P. art. 858; State v. Vince, 305 So.2d 916 (La.1974). The motion for new trial was properly denied.

DECREE

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


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Herman BRASHEARS, a/k/a Louis Brashears.
    No. 56461.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, represented by appointed counsel, was convicted of committing aggravated battery, a violation of LSA-R.S. 14:34. He was subsequently charged as a double offender and sentenced to serve twenty years in the custody of the Director of the Department of Corrections. On appeal, defendant relies upon a single specification of error for reversal of his sentencing as a multiple offender.

Defendant alleges that during the hearing in the multiple offender proceeding, the State failed to affirmatively show that the defendant, Louis Brashears, was in fact a multiple offender. He alleges that neither the court nor his attorney informed him of his constitutional rights before he pleaded guilty in the prior proceeding.

To refute this allegation, we note from the record that defendant in the prior proceeding was represented by retained counsel ; that he signed a plea of guilty form in which he declared that he understood he was waiving his right to trial and to appeal; and, though he did not remember what the trial judge said, he remembered the j udge talking to him in open court.

On the basis of the evidence presented, we find no error in the trial court’s ruling that the defendant’s guilty plea was freely and voluntarily entered and that the defendant is a multiple offender.

For the reasons assigned, the sentence as a multiple offender is affirmed.

DIXON, concurs.

CALOGERO, J., concurs. There is no merit to defendant’s single assignment of errors.


author: BOLIN, Justice.

text:
    STATE of Louisiana v. Luther SHARP.
    No. 56509.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Wilfret R. McKee, Harris, Stampley, McKee, Bernard & Broussard, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   BOLIN, Justice.

The defendant was charged by bill of information with the attempted armed robbery of a Morrison Cab Company driver and was convicted of that offense after a trial by jury. The trial court imposed a sentence of twelve years. This sentence, along with the conviction which forms the basis therefor, is attacked by the defendant upon this appeal. Defendant contends that two rulings by the trial court constitute reversible error and warrant reversal of his conviction and sentence. We affirm.

The attempted armed robbery for which defendant was prosecuted took place on the evening of September 1, 1974, in the uptown section of the city. After being brought to his destination the defendant attacked the driver with a hammer. Statements made by the defendant after the driver had subdued him and disarmed him, remarks concerning his need for money to obtain a “fix,” established that the attack was in pursuance of a plan to rob the driver.

ASSIGNMENT OF ERROR NO. 1

An error regarding the date of the offense appeared in the bill of information; the discrepancy between the date of the offense and the date appearing in the bill (September 2, 1974 originally appeared) was not noted until after the State had begun its opening statement and alluded to the true date of the offense. At the time the State mentioned the date, defense attorney interrupted the statement and requested that he and the prosecutor be allowed to approach the bench. At this point, the jury was excused from the courtroom and the court, after ascertaining the correct date was September 1, 1974, stated it would permit the State to amend the date shown in the information. Defendant objected to an amendment of the date, arguing that his defense was based on the date and that amendment would substantially alter his defense, since he was prepared to present evidence that on the date of the crime as originally charged, he was in no position to commit the crime. He acknowledges that La.C.Cr.P. art. 468 makes it unnecessary for an indictment to state the date of an offense when such date is not an essential element of the offense. He cites City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974), in support of his argument that the mistake in the date here is a defect of substance which “ * * * will work to the prejudice of the party accused. * * * ” 290 So.2d at 870.

Since the date on which the attempted armed robbery took place is not an essential element of the crime charged, the mistake respecting the date constitutes a mistake of form only, which may be amended at any time with leave of court, in accordance with La.C.Cr.P. art. 487. The mistake did not work to the prejudice of the accused, who was arrested at the scene of the attempted armed robbery of the cab driver on September 1, 1974, and was in fact in jail on September 2, 1974, and was wholly aware of these facts. This complaint is devoid of merit.

ASSIGNMENT OF ERROR NO. 2

This assignment of error is based on defendant’s objection to the trial court’s denial of his request for a continuance. At the time the court permitted the amendment of the date, defendant requested the continuance “to properly defend in this matter.” The trial court asked whether the planned defense concerned an alibi as to the September 2nd date, but defendant declined to disclose his defense, urging only that “date is very important in my defense.” Defendant then reserved a bill to the court’s overruling his objection to the amendment of the indictment and reiterated his earlier request for a trial continuance. The trial court indicated a willingness to grant a continuance only “[i]f it can be shown there is a substantial difference and it affects your defense very substantially— * * * ” and commented that defendant had not shown in what respect his defense was affected. Defense counsel replied:

“In the respect, Your Honor, with limitations, is that my witnesses, some of my witnesses, will testify as to their actions involving the defendant which would relate to his defense as having happened on the second. Now, you change the date, and there could possibly be some other witnesses that I could get for the particular date in question, if it’s changed to the first. My witnesses are testifying to what they know about the second. So, I requested a continuance in order to properly prepare — .”

The trial court interrupted, stating, “He was in jail on the second, huh? How could they testify to an alibi on the second?” Defense counsel stated that was “ * * * a part of the defense” but insisted that the court’s action substantially altered the defense. He admitted in response to a question by the court that one of the defense witnesses was to testify defendant was in jail on the second and therefore could not have committed an attempted armed robbery on that date. The trial court denied the continuance and the defendant objected.

We note at the outset that the repeated references to a trial continuance were improper since, according to the provisions of La.C.Cr.P. art. 708, only a recess could have been granted at this point, trial having commenced. Nevertheless, the same standard is applicable to judge the propriety of the trial court’s ruling on a request for recess. In State v. Richmond, 284 So. 2d 317 (La.1973) that standard was articulated :

“The grant or denial of a recess is largely within the well founded discretion of the trial court * * * where the defense did not make a showing of a compelling reason for granting a recess, at the time the motion was made, it cannot be said the trial court abused its discretion by refusing the recess.” 284 So. 2d at 326.

We do not find that defendant made a showing which mandated the granting of a recess. Defendant declined to do more than merely allege that he would be prejudiced by denial of the “continuance.” There was no convincing showing made which would have rendered the discretionary denial of the motion an abuse and, therefore, reversible error.

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


text:
    STATE of Louisiana v. Cornelius YOUNGBLOOD.
    No. 56510.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      James J. Gleason, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty.Gen., Barbara Rutledge, Asst.Atty.Gen., Harry F. Connick, Dist.Atty., Louise Korns, Asst. Dist.Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Cornelius Youngblood, with armed robbery in violation of LSA-R.S. 14:64. Following trial, the jury found him guilty as charged and the judge sentenced him to ninety-nine years imprisonment. He relies upon two assignments of error in his appeal to this Court. Finding merit in neither of them, we affirm the conviction and sentence.

In his first assignment of error, defendant complains of the trial court’s denial of his motion for a directed verdict at the close of the State’s case. Defendant contends that a directed verdict of not guilty was mandated under Article 778 of the Louisiana Code of Criminal Procedure because the evidence was insufficient to support a conviction.

In State v. Douglas, La., 278 So. 2d 485 (1973), we held that the language of Article 778 allowing a directed verdict of not guilty after the close of the State’s evidence “if the evidence is insufficient to sustain a conviction” refers to those cases in which the prosecution has produced no evidence to prove the crime or an essential element thereof. See also State v. Evans, La., 317 So.2d 168 (1975); State v. Sonnier, La., 317 So.2d 190 (1975). This Court does not review the sufficiency of the evidence so long as there is some evidence to support the verdict.

We have reviewed the transcript in the instant case and find some evidence of all the essential elements of armed robbery. The victim identified the defendant when he was apprehended twenty minutes after the robbery and again at trial. He testified that the defendant entered his shop, drew a gun, and at gunpoint robbed him of approximately $70.00. Two employees of the shop, present during the robbery, corroborated this testimony and also identified the defendant.

We hold that the motion for a directed verdict was properly denied.

Defendant made his second assignment of error to the denial of his motion for a new trial based on his allegation that the verdict was contrary to law and evidence. LSA-C.Cr.P. Art. 851. An allegation that the verdict is contrary to the law and evidence presents nothing for this Court’s review. See e. g., State v. Lisenby, La., 306 So.2d 692 (1975); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Williams, 262 La. 160, 262 So.2d 507 (1972).

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


text:
    STATE of Louisiana v. David Francis WOLFE.
    No. 56449.
    Supreme Court of Louisiana.
    Nov. 4, 1975.
    H. Sanders O’Neal, O’Neal & Ryan, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

David Francis Wolfe was charged by bill of information with simple burglary of Michael Capps Exxon Service Station in Houma, Louisiana, on July 17, 1973, in violation of La.R.S. 14:62. The matter was tried on April 9, 1975. Prior to trial, the accused exercised his option of being tried under the new constitution before a jury of twelve persons, ten of whom must concur to render a verdict. After trial, the jury returned a verdict of guilty as charged. Wolfe was sentenced to serve five years at hard labor. He has appealed his conviction and sentence to this court, assigning two errors allegedly committed at his trial.

FACTS

Michael Glenn Capps, owner of an Exxon service station at 718 Grand Caillou Road in Houma, Louisiana, closed his station about nine o’clock on the night of July-16, 1973. In the early morning hours, he received a telephone call from his employee, Isaac Hansey, who was spending the night in the station because of his eviction from his apartment. Capps telephoned the police and, with his wife, immediately drove to his station. The station was some three or four blocks from his home, and they arrived within two or three minutes of the call. As the Capps approached, they saw a man coming out of the station. They also observed a car parked on the side of the station. The man entered the car, turned on the lights, backed up and drove into a shell road across from the station, some thirty to forty feet away. The car was parked and the lights were turned off. No other cars were in the area at the time. Capps circled by his house, dropped off his wife and returned to the station. Upon his return to the station, the police had already arrived. The front glass of the station had been broken and the cigarette machine had been pried open.

Upon arrival at the station, Officers Authement and Chauvin crossed the street to the parked car and interrogated Wolfe, who was standing beside his car. Wolfe denied any involvement in the burglary of the Exxon station. Officers Hebert and Sheppard also arrived at the scene. The officers saw the broken glass of the front door. Officer Hebert observed what appeared to be blood particles and flesh on the jagged portion of the glass still in the door. An examination of Wolfe’s arm showed a small scratch on the right forearm with fresh blood. Wolfe was arrested. A crow bar (tire tool) was found on the right front floorboard of defendant’s vehicle and four packages of Kool cigarettes were on the front seat. Three dollars in quarters and ninety-five cents in nickels were taken from Wolfe’s front pocket.

ASSIGNMENT OF ERROR NO. 1

Defendant urges in this assignment of error that the trial judge erred in permitting the crow bar (S-l) and the three dollars in quarters, ninety-five cents in nickels and four packs of Kool cigarettes (S-2) in evidence at trial. The basis for this contention is that the state failed to establish a chain of custody of these items from the time of defendant’s arrest up through the trial date.

There is no merit to this contention. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we stated:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]

The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

See also State v. Freeman, 306 So.2d 703 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).

In the instant case, Sgt. Ronald Hebert testified that at the time of defendant’s arrest, he seized the crow bar (S-l) from the right front floorboard of defendant’s vehicle, the four packs of Kool cigarettes from the front seat of said vehicle, and the three dollars in quarters and ninety-five cents in nickels (S-2) from defendant’s front pocket. He stated that he tagged the crow bar and placed the other items in a sealed envelope. He signed his name and marked the date and case number on both the tag and the envelope. The crow bar and sealed envelope were turned over to the Shift Commander, Captain Wilford Authement. At trial, Sgt. Hebert identified the crow bar by his handwriting on the tag and by the bend in the crow bar which he remembered (S-l). Likewise, he identified and opened the still-sealed envelope containing the other articles (S-2). Captain Authement testified that S-l and S-2 were given to him by Sgt. Hebert properly marked, and he brought them in the same condition to court on the date of trial.

The chain of custody was amply established by the testimony of these officers. Clearly, it was more probable than not that the crow bar (S-l) and the four packs of Kools, three dollars in quarters and ninety-five cents in nickels (S-2) were the items related to this case. Hence, the trial judge properly permitted their introduction into evidence. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant contends that the record does not reflect that in one instance when the jury was removed and returned that the defendant waived a roll call of the returning jurors. It is argued that this deprived defendant of a trial by twelve jurors. Although no objection was made at the time of the occurrence, defendant asserts that the error is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence, relying on article 920(2) of the Code of Criminal Procedure.

It is well settled that if the error complained of is discoverable under article 920(2), the failure to object does not operate as a waiver of that error. State v. Craddock, 307 So.2d 342 (La.1975). However, the error must be one discoverable from the “record” as construed by this court. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Craddock, supra. Here the failure to waive the roll call of the jury is not such an error under article 920(2). Clearly, the error complained of is not part of the pleadings and proceedings and is discoverable only by inspection of the evidence. Consideration of such an error on appeal is explicitly proscribed by article 920(2). In any event, there is no showing that defendant was tried by a jury of less than twelve persons.

DECREE

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

SUMMERS, J., concurs in the result.

      . La.Const. art. 1, § 17 (19741 ; La.Code Crim.P. art. 782 (1966), as amended, Acts 1974, Ex. Sess., No, 25, § 1, eff. Jan. 1,1975.

      . Defendant waived a roll call of the jury on four other occasions in the record (pp. 149, 163, 168 and 193), and the failure to do so on page 180 was obviously an oversight.