text:
    STATE of Louisiana v. Wilbert MATTHEWS.
    No. 60505.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      Alton T. Moran, Director, Robert C. Williams, Office of Public Defender, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Wilbert Matthews was indicted by the grand jury for the Parish of East Baton Rouge for the crime of armed robbery in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged and was sentenced to serve ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on eleven assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash the grand jury indictment. He argues that the indictment was fatally defective in that its in-dorsement as “a true bill” was not signed by the foreman of the grand jury as required by La.Code Crim.P. art. 383.

At the hearing on the motion to quash, the prosecutor and defense counsel stipulated that the indorsement was signed by the acting foreman of the grand jury who had been appointed by the trial judge to act during the absence of the foreman. It was further stipulated that, while the foreman was absent when the grand jury was deliberating on the charge against the accused and when the indorsement was signed, he was present when the indictment was returned into the district court.

La.Code Crim.P. art. 383 provides:

An indictment is a written accusation of crime made by a grand jury. It must be concurred in by not less than nine of the grand jurors, indorsed ‘a true bill,’ and the indorsement must be signed by the foreman. Indictments shall be returned into the district court in open court; but when an indictment has been returned for an offense which is within the trial jurisdiction of another court in the parish, the indictment may be transferred to that court.

This court has previously recognized that the reasons for requiring the signature of the foreman, which involve accentuating the deliberateness of the grand jury’s finding, are adequately served when a duly designated representative of the grand jury, such as an assistant foreman, signs due to the absence, inability, or unwillingness of the foreman to sign. State v. Monton, 319 So.2d 331 (La.1975). Where, as in the instant case, the foreman is absent during the grand jury’s deliberations, the signature of the duly designated assistant or acting foreman constitutes substantial compliance with the procedural requirements for validity of the indictment through in-dorsement of the foreman. La.Code Crim.P. art. 383; State v. Mouton, supra. Accordingly, the trial judge did not err in denying defendant’s motion to quash the grand jury indictment.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a change of venue.

On the first day of trial prior to its commencement, defendant was permitted to file a motion for a change of venue; alternatively, defendant requested a continuance. The motion averred that, due to the widespread publicity given through the news media to the facts of the case, the prior trial, conviction and sentencing of defendant’s alleged co-participants in the crime, and news coverage of a similar offense committed by another individual a few days prior to defendant’s trial, a fair and impartial trial could not be obtained in the parish. Attached to the motion was a copy of a news clipping which reported the occurrence of the similar offense on the eve of trial. At defendant’s request, the ruling on the motion was deferred until the conclusion of the voir dire examination. Thereafter, the judge denied the motion.

The grounds for a change of venue are set forth in article 622 of the Code of Criminal Procedure as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

To warrant a change of venue, the burden is upon the accused to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. Article 622 requires a showing of more than mere knowledge by the public of facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. The granting or denial of a motion for a change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Lewis, 353 So.2d 703 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. delaBeckwith, 344 So.2d 360 (La.1977); State v. Morris, 340 So.2d 195 (La.1976); State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Flood, 301 So.2d 637 (La.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975); State v. Richmond, 284 So.2d 317 (La.1973).

In the instant case, the evidence presented in support of defendant’s motion for a change of venue consisted merely of a news account of a similar but unrelated offense committed by an individual other than defendant. The voir dire examination reveals that, while many of the prospective jurors had heard or read about the instant crime, they were unfamiliar with the details of the crime and had formulated no opinion in regard thereto. Moreover, they stated that they could render a fair and impartial verdict on the evidence presented at trial. Clearly, defendant failed to establish such prejudice in the public mind as to preclude a fair and impartial trial in the Parish of East Baton Rouge. Hence, the trial judge did not abuse his discretion in denying defendant’s motion for a change of venue.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in permitting, over defense objection and motion for mistrial, introduction of evidence of the murder of the victim of the armed robbery.

Evidence adduced at trial revealed that at approximately 2:00 a.m. on Saturday, January 15,1977, defendant and an individual named Kenneth Porter entered a Sho-ney’s restaurant in Baton Rouge with the cooperation of a restaurant employee and at gunpoint ordered Ronnie Lawrence, the restaurant manager, to hand over the money stored in the restaurant’s safe and cash register. In their escape from the restaurant, the perpetrators forced Lawrence into a car driven by Robert Dominick and thereupon fled to New Orleans. Immediately upon their arrival in New Orleans, defendant and Porter ordered Lawrence out of the car and shot him to death. After killing Lawrence, Porter and defendant got back into the car driven by Dominick and went to Porter’s house where they divided up the money. Several hours later, police arrested Porter and discovered in his wallet a payroll check payable to Lawrence (victim) and received by him prior to the robbery. Defendant was subsequently arrested and charged with the armed robbery of Lawrence.

The evidence demonstrates that, after forcing the victim of the armed robbery to surrender the cash from the restaurant’s safe and cash register, defendant and his co-participants subsequently robbed Lawrence of his payroll check either during their escape to New Orleans or at the time of his murder. Evidence of the murder was highly relevant to prove that the robbery of the victim was conducted by force or intimidation, an essential element of the crime of armed robbery. Hence, evidence of the murder was admissible for this purpose. La.R.S. 14:64; La.R.S. 15:435 and 441. Moreover, under the facts of this case, the murder of the robbery victim was an immediate concomitant of the armed robbery and formed in conjunction with it one continuous transaction. Therefore, it was also admissible as part of the res gestae. La.R.S. 15:448. What forms part of the res gestae is always admissible in evidence. La.R.S. 15:447; State v. Morris, 340 So.2d 195 (La.1976); State v. Curry, 325 So.2d 598 (La.1976). Hence, the trial judge did not err in permitting introduction of evidence of the murder of the victim of the armed robbery.

Assignment of Error No. 4 lacks merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in admitting in evidence a black and white photograph of the victim of the armed robbery at the location where he was murdered. He argues that the photograph constituted inadmissible evidence of another crime and was so gruesome that its prejudicial effect outweighed its probative value.

Defendant’s first basis of challenge to the admissibility of the photograph was previously considered in Assignment of Error No. 4 and, for reasons assigned therein, is without merit.

It is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Lewis, 353 So.2d 703 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Redwine, 337 So.2d 1041 (La.1976); State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327 So.2d 355 (La.1976).

After examining the photograph in question, we do not consider it gruesome. Moreover, the photograph was relevant to identify the robbery victim as well as to establish the use of force on him and that his assailants were armed with a dangerous weapon, essential elements of the crime of armed robbery. State v. Redwine, supra. Since the probative value of the photograph outweighs any possible prejudicial effect, the trial judge did not err in admitting it in evidence.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in denying his motion to suppress his confession and permitting its introduction in evidence. He argues that the confession was not freely and voluntarily made by him.

During trial, outside the presence of the jury, a suppression hearing was conducted. Detective Louis Dupuy, a member of the Baton Rouge Police Department, testified that he was present when defendant was arrested at his home in New Orleans. The arrest occurred at about 6:30 a.m. on January 16, 1977. Defendant remained in the custody of the New Orleans Police Department from the time of his arrest until he was surrendered to Dupuy and another officer at approximately 1:30 p.m. for transfer back to Baton Rouge. Dupuy related that, upon defendant’s arrival at the detective office in Baton Rouge at about 4:00 p.m. and after being fully advised of his Miranda rights and signing a waiver of rights form, defendant was questioned by him in the presence of Eddie Stewart, an investigator for the district attorney’s office, at which time defendant gave a taped confession of his involvement in the crime. He further stated that defendant was continuously in his presence from shortly before leaving New Orleans until the statement was made in Baton Rouge. He denied that defendant was ever left alone with Stewart. Depuy testified that defendant was given water upon request; defendant made no request to contact his family or an attorney.

Defendant testified that he was beaten by an unidentified police officer when arrested at his home in New Orleans. He stated that he was then taken to the detective bureau where Officer John Kastner forced him to sign a waiver of rights form. However, despite threats, he made no statement at that time. Upon his arrival in Baton Rouge, defendant claimed that Eddie Stewart attempted to make him confess by intimating that Kenneth Porter, one of his co-participants in the crime, had implicated him. He further claimed that Stewart indicated that, if he did not confess to the crime, he would be beaten as he had been at the time of his arrest. He stated that Detective Dupuy was not present during this conversation with Stewart; however, upon its completion, Dupuy returned and also threatened him. Dupuy then turned on a tape recorder and read him his rights. He admitted that he understood his rights, made the taped statement, and signed it; however, he claimed that he made the statement under threats of being beaten. Defendant further testified that he was denied food during the interval between his arrest and arrival in Baton Rouge.

In rebuttal, the state called Eddie Stewart, Officer John Kastner and recalled Detective Louis Dupuy. Stewart testified that he was present when defendant was interrogated by Dupuy. He denied ever being left alone with defendant or that either he or Dupuy threatened or coerced defendant in any way to confess. Stewart further testified that he was present when defendant appeared before the magistrate in New Orleans and was released to Baton Rouge police officers. He stated that he did not observe any physical indication that defendant had been beaten at that time nor did defendant make any complaint to the magistrate. Detective Dupuy testified on recall that neither he nor Stewart ever threatened defendant. Moreover, he stated that he was present when defendant was arrested at his home and he was not physically abused. He specifically denied seeing Officer Kastner abuse defendant in any way. Officer Kastner also denied that he beat or threatened defendant in any manner. Kastner stated that defendant was not denied water, cigarettes or access to the telephone while he was in custody in New Orleans.

At the conclusion of the suppression hearing, the trial judge found that the confession was freely and voluntarily made by defendant. He denied the motion to suppress and permitted introduction of the confession in evidence.

Before a confession may be introduced in evidence, the state has the burden of affirmatively' proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Mullins, 353 So.2d 243 (La.1977); State v. Lewis, 353 So.2d 703 (La.1977); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

In the instant case, defendant’s claim that he was beaten by an unidentified police officer when arrested at his home and was subsequently threatened by Kastner, Dupuy and Stewart was specifically denied by Kastner, Dupuy and Stewart. Moreover, although the record reflects that members of defendant’s family were present when he was arrested and allegedly beaten at his home, defendant failed to corroborate his assertion of physical abuse by calling them to testify on his behalf.

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been advised of his Miranda rights. Accordingly, the trial judge did not err in denying defendant’s motion to suppress and admitting the confession in evidence.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in denying his motion for a mistrial grounded on the claim that the state improperly referred to another crime allegedly committed by him and to the law of conspiracy in its opening statement. The present motion for a mistrial was not made until after the close of the state’s evidence.

Defendant’s allegation that the state improperly referred to another crime allegedly committed by him in its opening statement was previously considered in Assignment of Error No. 4 and, for reasons assigned therein, we find it to be without merit. It should be noted that defendant objected to this alleged error at the time of its occurrence during the state’s opening statement.

With respect to defendant’s second ground for mistrial, i. e., reference by the state in its opening statement to the law of conspiracy, no objection was made by defense counsel either contemporaneously with the reference or at the conclusion of the state’s opening statement. Defendant waited until the close of the state’s evidence before moving for a mistrial on this ground. In accordance with La.Code Crim.P. art. 841, this court has consistently held that an irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence. State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976); State v. Knight, 323 So.2d 765 (La.1975); State v. Burgy, 320 So.2d 175 (La.1975). In any event, there is no merit to the contention. It has been recognized that, when a defendant is on trial for the completed offense and the facts of the case establish the existence of a conspiracy, reference to the law of conspiracy may be relevant and permissible in order to allow the state to take advantage of the evidentiary rules found in La.R.S. 15:455. Therefore, if the state did in fact establish a prima facie case of conspiracy, the reference to the law of conspiracy during the state’s opening statement was proper. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bennett, 341 So.2d 847 (La.1976); State v. Kaufman, 331 So.2d 16 (La.1976).

In the instant case, we find that a prima facie showing was made by the state that four persons agreed or combined for the specific purpose of committing the crime of armed robbery. The record reflects that defendant, Kenneth Porter and Robert Dominick traveled from New Orleans to Baton Rouge where they stopped at a Shoney’s restaurant at about midnight. Porter conferred with a restaurant employee, Frederick Lewis, who instructed him to call at 1:45 a.m. to see if the time was right to rob the restaurant. Porter relayed this information to Dominick and defendant who had remained in the car. At the appointed time, Porter made the call from a bus station and was informed by Lewis that the time was right to pull the robbery. At 2:00 a.m., the men returned to the restaurant. While Dominick remained outside in the car, defendant and Porter, armed with pistols, gained entrance to the restaurant through the rear door by holding two employees at gunpoint. The manager, Ronnie Lawrence, was ordered to hand over the money stored in the restaurant’s safe and cash register. The two men then forced Lawrence into the waiting vehicle driven by Dominick. They fled to New Orleans, stopped at a certain location, and ordered Lawrence out of the car. Porter and defendant got out of the car with Lawrence. When Lawrence tried to escape, the two men shot him and returned to the car; however, not believing that he was dead, they returned to the victim whereupon Porter shot him again. Dominick then picked up defendant and Porter and drove to Porter’s apartment where the stolen money was divided among them. Inasmuch as the state’s evidence established at least a prima facie case of conspiracy, there was no error in the state’s correct reference to the law of conspiracy during its opening statement. Accordingly, the trial judge did not err in denying defendant’s motion for a mistrial on this ground.

In sum, Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in denying his motion for a mistrial based on a remark made by the prosecutor in rebuttal argument to the jury. He argues that the remark referred indirectly to defendant’s religion, national origin and political persuasion. He further argues the trial judge erred in failing to admonish the jury to disregard the remark.

During rebuttal, in answering defendant’s argument that his confession was not freely and voluntarily made by him in that it was the product of beatings and threats by police officers, the prosecutor remarked to the jury:

—your simple issue in this case with reference to that statement is — is it true, not is it freely or voluntarily — is it true! You’ve heard much about — if I was him, I’d leave town, I would not live in a town where they had such conniving, criminal, conspiring police authorities, I’d get out of town, I’d move on to Russia or somewhere else, where it’s nice!

Defendant objected to the remark and moved for a mistrial. The motion was denied. Defendant did not request an admonition.

Pursuant to La.Code Crim.P. art. 770(1), upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to defendant’s race, religion, color or national origin. The instant remark was directed toward defendant’s assertion of coercive police conduct in obtaining his confession and was not intended as a reference to defendant’s religion, national origin or political persuasion. Accordingly, La.Code Crim.P. art. 770(1) is inapplicable; rather, La.Code Crim.P. art. 771 is the applicable provision and provides in pertinent part:

In the following eases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

We do not consider that the prosecutor’s remark created such prejudice against defendant in the mind of the jury in view of the fact that the remark clearly did-, not refer to defendant but rather to the alleged coercive police conduct. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Defendant’s contention that the trial judge erred in failing to admonish the jury to disregard the remark is equally without merit. Under La.Code Crim.P. art. 771, it is incumbent on the party moving for the mistrial to request the admonition. State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Corey, 339 So.2d 804 (La.1976); State v. Gilmore, 332 So.2d 256 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). Since defendant did not request an admonition, the trial judge did not err in failing to give one.

Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant contends that the trial judge erred in denying his motion for a new trial.

The first three grounds for defendant’s motion assert allegations previously considered in Assignments of Error Nos. 4, 8 and 9, and for reasons assigned therein, are without merit.

Defendant’s fourth and fifth grounds for his motion for a new trial allege errors in the introduction in evidence of his taped confession. He argues that the confession admitted in evidence differed from the transcript of the confession provided to him prior to trial and was introduced into evidence before the state had established the essential elements of the crime charged. However, prior to and during trial, defendant’s sole attack on the admissibility of the confession was on the ground that it was not freely and voluntarily made by him. No objection to the admissibility of the confession on the grounds urged in defendant’s motion for a new trial was asserted by defendant prior to verdict. Hence, defendant waived any objection to introduction of the taped confession in evidence on these grounds. La.Code Crim.P. art. 841. In view of this waiver, defendant cannot urge on a motion for a new trial the alleged errors complained of. See La.Code Crim.P. art. 851(2).

The sixth ground for defendant’s motion for a new trial is that the trial judge erred in admitting in evidence various items seized from defendant at the time of his arrest. Prior to trial, defendant filed a motion to suppress this evidence on the ground that it was obtained pursuant to an unconstitutional search and seizure. However, at defendant’s request, this motion was referred to the merits. Subsequently, at the close of its case-in-chief, the state requested that the items be admitted in evidence. Defense counsel responded that he had no objection to their admission in evidence. In view of the foregoing, defense counsel may not now rely on any alleged error in the introduction in evidence of the items seized from defendant when he was arrested as a basis for the granting of a new trial.

The last ground for granting a new trial is that the ends of justice would be served thereby. La.Code Crim.P. art. 851(5). This is a ground upon which the trial judge may grant a new trial. It presents nothing for this court’s appellate review. State v. Williams, 343 So.2d 1026 (La.1977); State v. D’Ingianni, 217 La. 945, 47 So.2d 731 (1950).

In sum, the trial judge did not err in denying defendant’s motion for a new trial. Assignment of Error No. 11 is without merit.

DECREE

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

      . Defendant has neither briefed nor argued Assignments of Error Nos. 2, 6 and 7. We therefore consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.Code Crim.P. art. 621 provides:
      An application for a change of venue may be made by either the state or the defendant. It must be made at least five days prior to the date then fixed for commencement of trial; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial on the merits. The application shall be in writing, sworn to by the applicant or his counsel, and shall contain:
      (1) Allegations of fact upon which the application is based; and
      (2) A statement that the application is not made for the purpose of delay, but to obtain a fair and impartial trial.
      A contradictory hearing shall be held upon the application.

      . Because the alternative argument for a continuance was not argued on appeal, it will not be considered by this court. State v. Stewart, 325 So.2d 819 (La.1976).


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Redgley WILLIAMS, Jr.
    No. 60507.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Alton T. Moran, Director, Vincent Wilkins, Jr., Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn Castle, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was convicted of having incited and participated in a riot in which the death of. a person occurred, La.R.S. 14:329.-1-329.7, and was sentenced to twenty years at hard labor. Defendant appealed, relying upon two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant contends that the trial court erred in denying his motion for a change of venue. The record of the hearing on the motion presents issues substantially similar to those we considered in State v. Bell, 346 So.2d 1090 (La.1977). Here, as in Bell, the testimony taken as a whole does not support defendant’s contention that the trial judge abused his sound discretion in refusing the change of venue. State v. Berry, 329 So.2d 728 (La.1976); State v. Wilkerson, 326 So.2d 353 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976). Therefore, we find that defendant’s first assignment of error lacks ' merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial court erred in denying his motion to quash on the basis of the unconstitutionally of La.R.S. 14:329.1-329.7. In State v. Douglas, 278 So.2d 485 (La.1973), this Court up-; held the constitutionality of the statute now challenged by the defendant. See also Douglas v. Pitcher, 319 F.Supp. 706 (E.D.La.1970). Accordingly, defendant’s fourth assignment of error is without merit.

Defendants conviction and sentence are affirmed.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Paul PETTA, Appellant.
    No. 60558.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied April 11, 1978.

      Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Willian J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John L. A. Lenfant, IV, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Petta was convicted of possession of heroin, La.R.S. 40:966 B(l), and sentenced, as a multiple offender, La. R.S. 15:529.1, to ten years at hard labor. Upon his appeal, he relies upon five assignments of error.

We find no merit to these assignments:

Assignment 1:

The heroin was discovered as the result of a warrant obtained to search premises at 1433 Crete Street, Apartment C. The premises were further described as a two-story pink stucco house trimmed in white.

The residence was not marked with a street number. However, it was separated only by an alley from an adjacent residence numbered 1431. In fact, there was no 1433 Crete Street; the correct street number of the pink stucco residence searched was 1435.

A motion to suppress the heroin seized was based upon the discrepancy between the street number of the residence searched and that described by the search warrant. Such a discrepancy may indeed be fatal to the validity of a search warrant, in circumstances where the variance authorizes search of other premises than those actually searched. State v. Lee, 247 La. 553, 172 So.2d 678 (1965). A search warrant must describe with particularity the place to be searched, La.Const. of 1974, Article 1, Section 5; La.C.Cr.P. art. 162.

However, a description is sufficient when it reasonably enables the searching officers to ascertain and identify the place alone intended to be searched. State v.. Alexander, 337 So.2d 1111 (La.1976) (similar facts, where searched residence did not display street number); State v. Chaffin, 324 So.2d 369 (La.1975).

As we stated in State v. Cobbs, 350 So.2d 168, 171 (La.1977): “The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient.”

The description in the present search warrant meets this test, under the present evidence.

Assignment 3:

An earlier trial of the accused for the present offense had resulted in a mistrial two months earlier. The first jury could not' agree upon a verdict. Prior to the present re-trial, the defendant (who was representing himself) requested the court to furnish him a transcript of his earlier trial. He did not at the time specify any reasons or special need for this transcript.

By Assignment 3 he complains of this denial. He forcefully argues in brief that he was thereby denied a tool necessary for effective impeachment of police officers, state witnesses who allegedly testified inconsistently at both trials. In his motion for a new trial, he points out alleged inconsistencies in the testimony of officers Jen-' ning and Morse.

The defendant’s contention' is not frivolous. In the event of a re-trial, an indigent defendant is ordinarily entitled (as would be a person of means) to obtain a transcript of the first trial, for use for discovery or impeachment purposes, even without a showing of particularized need, unless an acceptable alternative is possible. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); State v. Johnson, 261 La. 620, 260 So.2d 645 (1972). See also: Comment, 20 Kansas L.Rev. 745 (1972).

We have ultimately concluded, however, that, under the circumstances shown, the pre-trial denial of the transcript of the first trial did not prejudice the defendant so as to constitute reversible error, especially since the second trial occurred so shortly after the first.

In the first place, the defendant himself, who was of course present at both trials and who remembered well the first testimony, was afforded an actual opportunity to cross-examine the two officers as to the alleged discrepancies in their testimony, and did so rather effectively. In the second place, the discrepancies themselves do not appear to have been significant in the determination either of credibility of the witnesses or the defendant’s innocence or guilt. Thus, the alleged discrepancies in the testimony are incidental in nature and were both known and explored by the person trying the case on the accused’s behalf.

Other Assignments:

The remaining assignments are clearly without merit:

Assignment 2: The defendant was not entitled to quash the indictment because of the earlier mistrial. The re-trial did not constitute double jeopardy (as the defendant contends), see La.C.Cr.P. arts. 591, 775(2), nor does the motion state any of the recognized grounds for quashing an indictment, see La.C.Cr.P. art. 532.

Assignment 5: The defendant complains that only five papers of heroin and several preludin tablets were taken from the evidence envelope in the presence of the jury, before they were introduced into evidence. (The record reflects that the evidence envelope contained narcotics and other objects seized from other persons at the time of the search of the premises.) The trial court permitted the defendant to examine the contents of the evidence envelope and afforded him an opportunity also to cross-examine the testifying officers as to them in the event he found exculpatory or other helpful material in the contents. No error or prejudice is shown by this assignment.

Assignment 7: No abuse of discretion is shown by the trial court’s refusal to grant the defendant’s motion for a new trial. It was sought on the basis of argued factual error by the trial jury and of the alleged discrepancies in the testimony of the police officers (see Assignment 3) in the two trials. It also suggested that the testimony of specified witnesses (who did not testify at his trial) would have been of help in proving his innocence; as to this contention, the showing of the motion clearly does not meet the requisites of La.C.Cr.P. arts. 851, 854, for granting a new trial based upon “newly discovered” evidence or witnesses.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . E. g.: whether the officers pounded on the door from one to two minutes, or from three to five minutes; whether the heroin was found in the same pocket of the defendant’s trousers as other drugs, or in a different pocket.


text:
    STATE of Louisiana, Appellee, v. Edward LEWIS and Ignatius W. Red, Appellants.
    No. 60559.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      Jasper N. Pharr, Baton Rouge, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendants were convicted of distribution of heroin, La.R.S. 40:966, and sentenced to life imprisonment. Upon their appeal, they rely upon six assignments of error. For reasons to be stated, we find no reversible merit is presented by them.

Context Facts

Officer Bethay, acting as undercover agent, arranged to purchase some cocaine from the defendants Red and Lewis (“Fats,” whom Bethay believed to be named Thomas Brown). He purchased three packets of a brown substance. Upon subsequent laboratory analysis, this substance turned out to be mostly heroin, the distribution offense with which the defendants are charged (although it had been “cut” i. e., diluted, with cocaine).

Before the purchase, Bethay field tested the substance with a cobalt reagent in the presence of the defendants. When it turned a slight blue, signifying the presence of the drug, he agreed to purchas'e the packets.

After the purchase, for police record and laboratory-testing purposes, he placed the packets in an evidence envelope and marked it with an identifying name. He wrote down the identification of “Thomas Brown,” which he mistakenly thought was the name of the defendant Lewis.

Three months before the present trial, an earlier trial had resulted in a mistrial because the jury was hopelessly deadlocked as to the defendants’ guilt or innocence. The most serious assignment (5) is based upon the trial court’s failure to allow the defendants the opportunity to explore differences in the testimony of a witness at the later trial, as compared with his testimony in the first.

Assignment 5

At the earlier trial, Officer Bethay had testified that in the field test before his purchase, he used the cobalt test, which is used to test for cocaine; and that the test was positive showing the presence of cocaine, since it turned slightly blue, showing “not much, just a little” cocaine. At the present trial, the officer stated that the test “gave a positive indication for the presence of cocaine or heroin ; I wasn’t sure of what it was at this time; they both give the same reaction.”

(To repeat, the defendants are charged with distribution of heroin, not cocaine.)

The assignment relates to attempts by the defendants to attack the officer’s credibility by showing the discrepancy between his present testimony and his inconsistent testimony at the prior trial. La.R.S. 15:493. The officer was asked whether, on the previous trial, he had testified only that the cobalt test was used for cocaine and that the substance tested was positive for cocaine (i. e., with no indication that the test was also used for and positive as to heroin, as was his present testimony).

In a series of inconclusive responses, the officer sought to explain or else denied remembering his former testimony. Accordingly, since the witness did not “distinctly admit making” the prior statement, La.R.S. 15:493, the defendant sought to introduce a copy of the page of the transcript of the former trial in which such statement was made.

The defendant was entitled to impeach the officer’s credibility by proof of this prior inconsistent statement, which the witness did not fully admit making. La. R.S. 15:493; State v. Rudolph, 332 So.2d 806 (La.1976); State v. Caldwell, 251 La. 780, 206 So.2d 492 (1968). The state’s objection that the present trial testimony was the best evidence, is clearly without merit and should have been overruled. The very purpose of proving the prior inconsistent statement is to raise doubt as to the correctness of the present testimony, insofar as inconsistent with the earlier statement.

Nevertheless, we ultimately conclude that the error is not reversible: In the first place, the witness himself read aloud to the jury his testimony from the transcript of the former trial, in attempting to explain it—from the colloquy as a whole, the jury was fully informed that of the officer’s prior inconsistent testimony, at the same time as the officer sought to explain it. In the second place, the field test at the scene of the purchase concerned a peripheral issue; it was stipulated that the purchased substance in fact contained heroin (as verified by subsequent laboratory tests), and the evidence explains that the substance purchased contained both heroin and cocaine.

Other Assignments

The remaining assignments do not require extended comment:

Assignments 4 and 7 complain of the admission into evidence of the three packets identified as containing heroin purchased from the defendants. The defendants contend that the heroin was not sufficiently identified as the substance purchased from them because of (a) the initial field test showing that it contained cocaine and (b) the labelling of the evidence envelope in the name of “Thomas Brown” rather than of the defendant Lewis.

Under the evidence in the case, these discrepancies were explained. The evidence as a whole established it to be more probable than not that the objects introduced were those purchased from the defendant, the prerequisite for its admissibility. Once this prerequisite for admissibility is met, doubts as to the positive identification present a jury issue as to the sufficiency of the evidence, leaving it to the trier of fact to determine whether the weight of the evidence does or does not prove the identity of the objects introduced with those sold by the defendants. See: State v. Rittiner, 341 So.2d 307 (La.1975); State v. Franks, 284 So.2d 584 (La.1973); and decisions therein cited.

Assignments 6 and 8 relate to the curtailment of cross-examination of state witnesses as repetitious (Assignment 6) or irrelevant (Assignment 8). We find no abuse of discretion or reversible error presented by these assignments.

Assignment 11 relates to the denial of a new trial, sought on the basis of the alleged trial errors previously discussed. Since we have found no such errors, the assignment is without merit.

Decree

We therefore affirm the convictions and sentences.

AFFIRMED.


text:
    STATE of Louisiana v. John BOUDREAUX, Willie Boudreaux.
    No. 61344.
    Supreme Court of Louisiana.
    Jan. 12, 1978.
   In re: John Boudreaux and Willie Bou-dreaux applying for supervisory and/or remedial writs. Jefferson Parish.

Writ granted. The defendant is entitled to call witnesses at the pre-trial preliminary hearing. La C.Cr.P. art. 294,

SANDERS, C. J., and SUMMERS, J., dissent from the granting of the writ.


text:
    Mary Ellen Sheehan PEREZ v. Chalin O. PEREZ and Whitney National Bank.
    No. 61321.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Chalin 0. Perez, applying for remedial writs of review and stay order. Parish of Orleans.

Writ denied and stay order recalled.

SANDERS, C. J., SUMMERS, and MARCUS, JJ.,

are of the opinion that a writ should be granted, being of the view that the State Court lacks jurisdiction. Section 7422(a) Internal Revenue Code; Enochs v. Williams, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962).


author: DIXON, J.,

text:
    STATE of Louisiana v. Charles BROWN.
    No. 60854.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Charles Brown applying for remedial writs. Parish of Jefferson.

Denied.

DIXON, J.,

concurs in denial and is of the opinion the following cases should be overruled: State v. Hubbard, 228 La. 155, 81 So.2d 844 and State v. Jones, 220 La. 381, 56 So.2d 724.


text:
    COLONIAL PIPELINE COMPANY v. Joseph N. TRAIGLE, Collector of Revenue. Shirley McNAMARA, Secretary, Dept. of Revenue and Taxation v. COLONIAL PIPELINE COMPANY.
    No. 61273.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
   In Re: Joseph N. Traigle, Collector of Revenue and Shirley McNamara, Secretary, Dept, of Revenue and Taxation, State of La., on writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 353 So.2d 728.

Denied.


author: SANDERS, C. J., and SUMMERS, J.,

text:
    STATE of Louisiana v. Lois RANDLE.
    No. 61325.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Lois Randle applying for writs of certiorari, mandamus, prohibition and stay order. Parish of St. Mary.

Writ granted. The transcript of the proceeding in which relator pleaded guilty indicates that relator was not properly Bokin-ized in view of her exposure to imprisonment. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Accordingly, relator’s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings.

SANDERS, C. J., and SUMMERS, J.,

dissent from this grant on the basis of improper Boykinization. See McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973).


author: REDMANN, Judge. PER CURIAM.

text:
    OWENS & SONS, INC. v. GUASTELLA EAST, INC., et al.
    No. 8523.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.
    Plauche F. Villere, Jr., Villere & Villere, New Orleans, for plaintiff-appellee.
    Charles G. Merritt, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   REDMANN, Judge.

Plaintiff sued on a note executed by Rosario Guastella Sr. and Jr., mistakenly alleging that the note attached to the petition was also signed by Guastella East, Inc. After exception by the corporation, plaintiff filed a supplemental and amending petition, alleging that the corporation “is simply a corporate veil” for the Guastellas; and that plaintiffs should be able to maintain a materialmen’s lien against the corporation’s property for the debt for materials represented by the note. There was judgment against the Guastellas and the corporation for the amount of the note. We reverse as to the corporation, which alone appeals.

The corporation is not liable on the note, which was signed by the Guastellas both individually and for “Guastella East Construction Company”, which was a partnership which built apartments on land belonging to the corporation. The note was for materials for the apartment buildings, but no lien was ever filed (and the only evidence is that the “lien right had expired” when the note was taken).

There is evidence from which one might arguably conclude (1) that the Guastellas are the true owners of two thirds or all of the corporate stock (a point we cannot decide because the stock is registered to three other persons not made parties to this action), and (2) that the corporation’s affairs were not so managed as to preserve the shareholders’ freedom from liability for corporate obligations. Thus, if what is sought were the usual piercing of the corporate veil so as to hold shareholders liable for corporate debts (and if the registered shareholders had been made parties), the proof might suffice.

But plaintiff seeks, to the contrary, to hold the corporation liable for its (alleged) shareholders’ debt. This is an unnecessary and therefore unavailable remedy: if the individual judgment debtors are truly the shareholders of the corporation, their shares can be seized and sold in execution of the judgment against them; and if, on the other hand, the corporate assets (real estate) are truly the assets of the individuals rather than of the corporation, then those assets can be seized and sold in execution of the judgment against the individuals. But in neither case does the juridical person of the corporation become liable for the personal debts of the individuals.

The corporation is therefore not liable for the Guastella debt.

Moreover, the attachment of the corporation’s property on the basis that the Guas-tellas had sold their homes and vanished was without legal foundation under C.C.P. 3541. But the corporation showed no damages from the attachment other than attorney’s fees, which “may be included as an element of damages” under C.C.P. 3506. “May” gives discretion and we are sufficiently suspicious that the Guastellas are secret shareholders of the corporation that we decline to allow attorney’s fees to the corporation.

Reversed as to Guastella East, Inc.; attachment dissolved; plaintiff to pay all of Guastella East, Inc.’s costs.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff’s argument that a building owner’s benefit from building materials supplied is unjust enrichment unless the building owner pays for them is unsound. The law does provide, in La.R.S. 9:4802 and 4812, to a materialman a lien against the property which his material has improved. But the materialman must record his claim to obtain this lien. The practice is for an owner to retain a portion of the contract price until the lien-filing period has passed: then, if no liens are filed, the owner knows that he and his property are free of claims and he therefore pays the final contract payment to the contractor. If our plaintiff had recorded a lien it would have been protected. But even then it would have had to file a suit within a year, and its failure to do so would also have made its claim ineffective against the owner, and plaintiff could raise the same unsound claim of unjust enrichment.

The basic rule of contract is that the buyer pays the seller: the contractor who bought from plaintiff still owes plaintiff the price. That price comes, ultimately, from the money that the owner pays to the contractor. There is no unjust enrichment of the owner: he pays for what he gets. There may be unjust impoverishment of a materialman whom the contractor does not pay, but the materialman has sure protection under the building contract law. Plaintiff’s rejection of that sure protection does not unjustly enrich the owner.

Rehearing is refused.


author: LEMMON, Judge. LEMMON, Judge, SCHOTT, Judge,

text:
    Aaron Lester SARPY v. Theresa Locicero SARPY.
    No. 8513.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 27, 1978.

      Jacob L. Kamo, Metairie, for plaintiff-ap-pellee.
    Frank J. D’Amico, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

This is a suit by Aaron Sarpy to annul two donations inter vivos of immovable property to his former wife on the basis that the acts were not passed before a notary public and two witnesses, as required by C.C. art. 1536. Mrs. Sarpy has appealed from a summary judgment declaring the donations null and void.

The two donations were executed during the marriage between the parties, and both donations involved Mr. Sarpy’s separate property. Affidavits and depositions established that (1) the 1970 act was executed in the Sarpy home with only Mr. and Mrs. Sarpy present, the notary and witnesses signing a day or two later, and (2) the 1971 act was executed in the Sarpy home with only Mr. and Mrs. Sarpy and the two witnesses present, the notary signing a day or two later.

The basic issue in this appeal is whether Mr. Sarpy, on these undisputed facts, is entitled to judgment as a matter of law.

C.C. art. 1536 provides:

“An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”

Mrs. Sarpy points out that both parties, the notary and the witnesses admitted the genuineness of the signatures. Citing C.C. art. 2242, she argues that, as between the parties to the act of donation, the act has the same credit as an authentic act.

C.C. art. 2236 provides that an authentic act (defined by C.C. art. 2234 as one executed before a notary public and two witnesses) is full proof of the agreement contained in the act, against the contracting parties and their heirs or assigns. C.C. art. 2242 accords an act under private signature, if acknowledged by the party against whom it is adduced, the same probative credit as an authentic act.

C.C. art. 1536, however, is not concerned with the proof of consent, capacity or the other requisites to the validity of a contract, but with the requirements of form. A donation inter vivos is a formal contract, which is not based on the mere consent of the parties. 3 Planiol, Treatise on the Civil Law, § 2523 (La.St.L.Inst. Trans.1959). In order for a donation inter vivos of immovable property to be valid, the parties must comply strictly with the requirements of C.C. art. 1536, and the . act must be passed before a notary public and two witnesses.

In this case each act of donation on its face appears to have been passed before a notary public and two witnesses, but the evidence proves otherwise. An act of donation executed outside the presence of a notary is not sufficient, even if the signatures evidencing the intention and consent of the parties are admitted to be genuine. Such an act at most constitutes an act under private signature, and a donation of immovable property by act under private signature is null. Gabert v. St. Tammany Yacht Club, 166 La. 57, 116 So. 667 (1928).

This conclusion, however, is not determinative of Mr. Sarpy’s entitlement to a summary judgment as a matter of law in this case. In response to the petition for declaration of nullity Mrs. Sarpy filed an exception of estoppel, and we must consider the merits of this exception before determining whether or not Mr. Sarpy is entitled to judgment as a matter of law.

In support of her exception of estoppel Mrs. Sarpy points out that in the earlier alimony litigation her husband successfully asserted that her means (primarily the use of and income from the donated properties) were sufficient for her maintenance, and she contends he is now estopped to deny the validity of her title (by transfer from him) when he previously asserted her title ownership as a defense to payment of alimony.

In the earlier litigation Mrs. Sarpy’s record ownership of the donated properties and her income therefrom constituted proper evidence bearing on the determination of her means for her maintenance. In the course of the testimony Mr. Sarpy was asked on several occasions to admit that the donations were valid, but he declined to do so, stating that the validity of the marriage contract was being attacked and he had not yet decided whether to attack the validity of the donations.

Mr. Sarpy did not judicially admit the validity of the donations. See C.C. art. 2291. He merely interposed the income and ownership of the donated properties as a bar to his wife’s entitlement to alimony at that time.

Moreover, the validity of the donations was not at issue in the alimony litigation, since Mrs. Sarpy’s right to alimony had to be determined in a summary proceeding on the existing record ownership of property and could not be delayed because there were pending or potential attacks on the validity-of the titles. While Mr. Sarpy’s present attack on the donations represents somewhat of an inconsistent position from that previously taken, we perceive no detriment to Mrs. Sarpy’s alimony cl'aim. She has enjoyed the use of the properties and received income therefrom since our earlier judgment. A declaration of nullity might constitute a sufficient change in circumstances to entitle her to alimony in view of that change. But the only question now before us is Mr. Sarpy’s entitlement to annulment of the donations as a matter of law, and he is not estopped from seeking this annulment because his wife’s ownership of and income from the donated properties previously worked to his advantage in the alimony litigation.

However, we perceive another basis for a decision that Mr. Sarpy is estopped from seeking to annul judicially the acts of donation, each of which is valid on its face.

Mr. Sarpy was a lawyer, and the notary public who executed the acts was his secretary. If Mrs. Sarpy can prove he purposefully created a defect in the form of the donations in order to reserve a method of revoking an otherwise irrevocable donation, we would be disinclined to allow use of the courts for the purpose of accomplishing such a scheme. The purpose of requiring an act of donation to be executed before a notary and two witnesses is to protect the donor from fraudulent schemes or undue influence; the requirement was not intended to provide the donor with a scheme for avoiding the effects of C.C. art. 1468’s provision for irrevocability of donations inter vivos. See footnote 3. The codal purpose would be distorted if we allowed the use of C.C. art. 1536 as a method for a donor to make a donation revocable at his own will.

This appeal is from a summary judgment. Whether or not Mr. Sarpy should be equitably estopped from asserting the nullity of the donations depends upon unresolved issues of material fact, and Mrs. Sar-py should be allowed an opportunity to prove, at the trial on the merits, the facts necessary to provide a basis for estoppel. We do not attempt to speculate on what facts will support an estoppel, because such a decision always depends upon the facts and circumstances of the particular case. Noting that some facts in the record suggest a basis for applying the doctrine of estoppel, we simply hold that summary judgment is not now appropriate.

Accordingly, the summary judgment is set aside, and the case is remanded for further proceedings.

SET ASIDE AND REMANDED.

LEMMON, Judge,

concurs in the denial of the application for rehearing and assigns reasons.

This decision does not, as contended in Mr. Sarpy’s application for rehearing, stand for the proposition that title to immovable property can be acquired by estoppel. This decision merely holds that a donor is not entitled to a summary judgment, as a matter of law, when a donation inter vivos (valid on its face) was admittedly signed by the parties outside the presence of a notary, if the donee shows disputed facts to suggest purposeful creation of a formal defect, in order to provide a way out of an otherwise irrevocable act. Whether a donor can set up a defect under C.C. art. 1536, so as to avoid operation of C.C. art. 1468’s provision for irrevocability of donations, is a question of law which is more appropriate for decision after a trial on the merits.

Of course, the trial on the merits may not produce sufficient evidence of fraud or deception, damage or detriment, reliance or other factors to support application of es-toppel, but our decision simply declares that Mrs. Sarpy is entitled to an opportunity to present such evidence at a trial on the merits.

SCHOTT, Judge,

assigns reasons for voting to grant a rehearing.

I have voted to grant a rehearing because I am convinced that our original opinion contains a fundamental error, the correction of which may require that the judgment appealed from be affirmed.

In the first half of an original opinion, we correctly recognized that for a donation inter vivos of immovable property to be valid, the parties must comply with LSA-C.C. Art. 1536. Since these parties did not so comply the only conclusion to follow is that this donation was null. Thus, ownership of the property remained in Mr. Sarpy after the acts of donation were supposedly passed.

What we have done, however, is to permit Mrs. Sarpy to establish her title to the property by estoppel, something clearly prohibited under our law. Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962); Koerber v. City of New Orleans, 228 La. 903, 84 So.2d 454 (1955).

Because this is clearly inconsistent with the jurisprudence I would like to reconsider the matter on rehearing.

      . The properties were separate property because of a marriage contract, the validity of which was attacked by Mrs. Sarpy in prior litigation. In December, 1975 (before the present suit was instituted) this court had affirmed a judgment upholding the validity of the marriage contract and dismissing Mrs. Sarpy’s demand for alimony on the basis that she had sufficient means for her maintenance. See Sarpy v. Sarpy, 323 So.2d 851 (La.App. 4th Cir. 1975).

      . C.C. art. 2242 provides:
      “An act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, between those who have subscribed it, and their heirs and assigns, the same credit as an authentic act.”

      . The rationale underlying the imposition of the formality was twofold. A dominating influence can unduly or fraudulently affect a donor’s freedom of action, and the requirement of formality was designed to diminish such an influence or at least allow time for reflection when such influence is exerted. The requirement also served to assure the irrevocability of donations by having the instrument filed and preserved by a notary. 3 Planiol, supra, § 2526.

      . Parol evidence is admissible to establish that an instrument purporting to be an authentic act is not in fact authentic because it was not executed in compliance with codal requirements. American Bank & Trust Co. v. Carson Homes, Inc., 316 So.2d 732 (La.1975).

      . In another area in which there is the formal requirement of an authentic act, the Supreme Court has held that the authentic act requirement for executory process must be strictly followed and that an act executed outside the presence of the notary is insufficient to support executory process. American Bank & Trust Co. v. Carson Homes, Inc., supra. The dissenting opinion relied on C.C. art. 2242 and 2244, asserting the exact argument made by Mrs. Sarpy in this case.


author: GULOTTA, Judge.

text:
    Gloria Delesdernier, wife of Paul MARCHAND, v. ESTATE of Julia LOGA, wife of George W. Delesdernier, et al., and Delesdernier Estates, Inc. In the Matter of Succession of George W. DELESDERNIER. In the Matter of Succession of Julia Theresa LOGA, wife of George W. Delesdernier.
    Nos. 8665-8667.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Writs Denied Feb. 17, 1978.

      See also La.App., 184 So.2d 37.
    E. Howard McCaleb, III, New Orleans, for plaintiff-appellant Gloria Delesdernier.
    Liska, Exnicios & Nungesser, King F. Nungesser, Jr., New Orleans, for interve-nor-appellant Angie Neider Delesdernier.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ernest A. Carrere, Jr., Lucius F. Suthon, New Orleans, for defendant-appellee Mark Delesdernier.
    Thomas J. Toranto, Jr., New Orleans for intervenors-appellees Succession of Ira De-lesdernier, Sr., Paul Delesdernier and Gael Keene Ralph.
    Charles D. Lancaster, Jr., Metairie, for third-party defendants-appellees, Shirley Delesdernier (Deceased), Wife of/and Charles C. Koehl.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal, on exceptions of no cause and no right of action, of her claim to set aside simulated purchases of real property and from a judgment maintaining a plea of prescription of her tort claim for damages arising out of fraudulent succession proceedings and fraudulent sales of succession property. We affirm.

In these consolidated suits, plaintiff, the granddaughter of George W. and Julia Loga Delesdernier, seeks to have brought back into the successions of her deceased grandparents property purchased by George W. as agent for his son, Mark Delesdernier (in one act of sale), and for his children, Mark, George 0. and Shirley Delesdernier (in two acts of sale). According to plaintiff’s amended petition, she alleges that George W. “purported to be the agent” for the named children (her uncles and aunt) in the three acts of sale from the succession of Robert M. White “but in truth and in fact he was purchasing for himself and paid the purchase price therefor with his own funds and continued, after the purchase, to exercise ownership . . . ” and “this purported agency did not exist but was a subterfuge used by the decedent to make disguised donations to his children . . . Plaintiff further seeks to have the purported acts of sale “declared to be fraudulent simulated transfers” and the property acquired in those acts to “be deemed to have been property acquired by the community heretofore existing” between Julia and George Delesdernier.

In a second amended petition in these consolidated cases, plaintiff alleges further that George W. in two tax sales from the White succession purported to purchase as agent for Mark Delesdernier when in truth and in fact George W. purchased with his own money the tax sale property. Plaintiff further prays that the property purchased in the two tax sales be brought back into the succession of George W. and Julia, plaintiff’s grandparents, and that the property be divided among the heirs including herself.

In an earlier opinion rendered in the Succession of Delesdernier, 184 So.2d 37 (La.App. 4th Cir. 1966), this court, after examination of the pleadings alleging simulation of the same sales sought to be set aside in the consolidated cases now before us, concluded that the allegations of the petition set forth a cause of action on simulation. In the earlier case, we remanded the matter for trial on the merits.

Referring to the earlier opinion, plaintiff contends that this court examined the allegations of the petition to ascertain if a cause of action had been stated, reversed the trial court’s determination maintaining the exception of no cause of action and remanded the matter to the trial court. According to plaintiff, the allegations which this court concluded stated a cause of action, in the earlier opinion, are the same allegations before us at this time. Citing the doctrine of the “law of the case”, plaintiff contends that the present panel of this court cannot recede from its earlier judgment finding a cause of action and remanding it for trial. With regard to the exception of no right of action, plaintiff argues that as a legal heir of her grandparents (through representation of her father), she has a right of action in the alleged simulations.

In supplemental brief, she further argues that the court erroneously maintained the exception of one-year prescription for damages resulting from a sale of her interest in her grandparents’ successions and from the succession proceedings of her grandparents. In this respect, she contends that only a few months prior to the filing of her petition on October 5, 1960, she had become aware of certain frauds and forgeries including forged signatures on the original petition in the succession of her grandmother filed on May 25, 1934, and on the act of sale executed on February 11, 1935, conveying plaintiff’s interest in her grandmother’s estate. Under these circumstances, she argues, the trial judge erred in maintaining the exception of one-year prescription for damages resulting from the forgeries.

NO CAUSE OF ACTION

It is well settled that in determining the validity of an exception of no cause of action, the allegations of the petition are accepted as true and evidence is inadmissible to disprove the allegations. See Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); LSA-C.C.P. art. 931. Where exhibits are made a part of the petition, they are considered in connection with the allegations. Leidenheimer v. Schutten, 194 La. 598, 194 So. 32 (1940); American Creosote Company v. Springer, supra. The issue on the exception of no cause of action is whether the petition and attached exhibits present a case legally entitling plaintiff to the redress sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

When we consider the allegations of the petition and the acts of sale incorporated by reference in the pleadings, we are led to conclude that plaintiff fails to state a cause of action in simulation with regard to these sales. The petition, referring to the acts of sale from the White succession to the children, merely alleges that George W. purportedly acted as agent on behalf of the children, but in fact purchased for himself because no agency existed. It is neither alleged nor contended that the property was conveyed by George W. to the children. George W. did not purchase as owner. In truth and in fact the purchase was made from the White succession by George W. as agent for the children. George W. appears only as agent. The acts of sale following the adjudication of the property to George W. recite that in confirmation of the adjudication the administrator of the succession conveys the property to the children “represented by George W. Delesdernier”. The acts of sale on their face involve transfers of property from the White succession to the children; they are not instruments conveying property owned by George W. to the children. As pointed out by defendant, if no transfer exists from George W. to the children, Mark, George O. and Shirley, there can be no claim of the existence of a simulated transfer from George W. to his children. The property went from Succession of White to the children.

In Eberle v. Eberle, 161 La. 313, 108 So. 549 (1926), cited by defendant, a similar attack was made by a forced heir who alleged that the decedent had caused the property to be put in the name of her daughter when in fact she (the decedent) was the purchaser. In the cited case, the forced heir sought, by means of parol evidence, to recover the property for the succession. The Supreme Court held that LSA-C.C. art. 2239 was inapplicable and that parol evidence could not be used by the forced heir to attack the sale. The court, supra at pages 550-551, stated:

“The position of plaintiffs is that the act of the deceased, Mrs. Eberle, in causing the property to be put in the name of her daughter, when she was, in fact, the purchaser, was a simulation, and that those of her children, who are plaintiffs herein, have a right to uncover the simulation, under the foregoing article, by means of parol evidence, and to recover the property for the succession, in order to protect their rights therein. * * For a forced heir to avail himself of this article it ought to appear that the property belonged to his ancestor by some title recognized by law, such, for instance, as by act of sale, or by inheritance, or by prescription, and that his ancestor thereafter apparently transferred the property to another, or made some other simulated contract with reference to it. It is the transfer or contract, made by the ancestor, as owner of the property, that his forced heir may attack as simulated, and show the simulation by parol evidence. In other words, a forced heir may attack by parol a transfer made by his ancestor, for the purpose of showing that it was a simulation, in order to bring the property back into his ancestor’s succession or to recover it for himself, but he cannot use parol evidence to bring into the succession or to recover property, which under no form of title recognized by law ever belonged to his ancestor or to his ancestor’s succession. * * * ”

Similarly, in Succession of Hogh, 193 La. 260, 190 So. 399 (1939), a case also involving an attack by a forced heir, the court maintained an exception of no cause of action and stated, supra at page 401:

“ * * * There is no allegation in the plaintiffs’ petition that this property belonged to their ancestor by any title recognized by law, viz., by deed, by inheritance or by prescription. There is no allegation that the property was ever transferred by the plaintiffs’ ancestor to another. It is the contract or transfer made by the ancestor that forced heirs may attack as a simulation. Under the provisions of Article 2239 the forced heirs have the right to annul the simulated contract of those from whom they inherit but they could not under this provision of the law establish title to property which under no form of title recognized by law ever belonged to their ancestor or their ancestor’s succession. Hoffmann v. Ackermann et al., 110 La. 1070, 1076, 35 So. 293; Malbrough v. Roundtree, 128 La. 39, 54 So. 463; Eberle v. Eberle, 161 La. 313, 108 So. 549; and Scurto v. Le Blanc, 191 La. 136, 184 So. 567.”

Considering the Eberle and Hogh cases, we conclude plaintiff has failed to allege a cause of action in simulation in connection with the five acts of sale made subject to these proceedings.

We find no merit to plaintiff’s contention that the doctrine of the “law of the case” compels us to overrule the exception of no cause of action. It is true that the earlier opinion of this court, supra at page 52, states:

“ * * * We conclude . . . that plaintiff has sufficiently pleaded the issue of simulation, and justice requires that she have her day in court to prove her allegations.”

A reading of the opinion, however, indicates that the court was referring to a sale from George W. to Delesdernier Estate, Inc. and other sales from George W. to one or more of his children. The court further states, supra at pages 52-53:

“We have examined all the pleadings in an attempt to determine as best we can from the repetitious allegations the extent to which simulation has been pleaded in regard to various sales or transfers of property, and have set out the pertinent allegations below. There may be others which have escaped our notice. Therefore, the following listing is not necessarily intended to be exclusive, but should be a guide to the trial court when and if the trial on this issue is reached on remand.
“Plaintiff’s attack on the ground of simulation is directed at the sale by George W. Delesdernier to Delesdernier Estate, Incorporated, of all his undivided one-half or community interest in the 15 tracts of property described in plaintiff’s petition in No. 2767, and also at the following sales or transfers by him: [emphasis ours]
[Thereafter follows a listing of the three acts of sale from the White succession to the children and eight other sales purportedly from George W. to one or more of the children.]”

Indeed, in view of the Eberle and Hogh cases cited above, a sale from the father to the children might very well state a cause of action in simulation. The three acts of sale before us, however, though listed in the previous opinion, are sales from the White succession to the children and are not sales by George W. to Mark, George O. and Shirley. Accordingly, the doctrine of the law of the case does not obligate us to overrule the exception of no cause of action with regard to the sales of property from the White succession.

Because plaintiff has failed to state a cause of action in simulation of these five sales, we do not reach the exception of no right of action.

PRESCRIPTION

We find no merit to plaintiff’s contention that the trial judge erred in maintaining the plea pf one-year prescription to plaintiff’s claim in tort for $1,000,000.00 in damages resulting from alleged simulated sales, fraudulent transfers and- invalid succession proceedings. In the earlier Fourth Circuit opinion, supra at pages §3-54, the court addressed itself to the same issue and, while in'dicta disclaiming to pass on the prescription plea, did in fact conclude that prescription had tolled insofar as this claim for tort damages is concerned.

Assuming, for the sake of argument, that this court did not pass on the prescription plea in the earlier decision, nevertheless, the rationale of the court relating to prescription is applicable in our case. Though the court pointed out, supra at page 54, that plaintiff had negated prescription by alleging in her petition filed in 1958 that “during the last four months [she had] learned” of the fraudulent occurrences, the court factually found that in a suit filed in 1951 plaintiff had made the same allegations which serve as the basis for her claim in tort filed in 1958. Under the circumstances, we adopt the conclusion of this court stated supra at page 54:

“ * * * Clearly prescription had long since run against a claim for damages on account of the fraud therein alleged.”

Accordingly, we conclude the trial judge properly determined that the prescription of one-year (LSA-C.C. art. 3536) was applicable. The judgment is affirmed.

AFFIRMED.

      .The five acts of sale are:
      1. Sale of Property by Succession of Robert M. White to Mark Delesdernier, represented by George W. Delesdernier, dated August 24, 1931.
      2. Sale of Property by Succession of Robert M. White to Mark, George O. and Shirley I. Delesdernier, represented by George W. De-lesdemier, dated October 29, 1931.
      3. Sale of Property by Succession of Robert M. White to Mark, George O. and Shirley I. Delesdernier, represented by George W. De-lesdernier, dated November 14, 1931.
      4. and 5. Two 1931 tax sales of Robert M. White property to Mark Delesdernier.


author: STOULIG, Judge.

text:
    Gloria Delesdernier, wife of Paul MARCHAND v. George T. ARMSTRONG and Mark Delesdernier et al.
    No. 8664.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearings Denied Jan. 11, 1978.
    Writs Denied Feb. 17, 1978.

      Gloria D. Gerald, in pro. per.
    E. Howard McCaleb, III, New Orleans, for plaintiff-appellant.
    James E. Wright, Jr. and Milling, Benson, Woodward, Hillyer & Pierson, Charles A. Snyder, Kennedy J. Gilly, Jr., New Orleans, for George T. Armstrong.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ernest A. Carrere, Jr., Lucius F. Suthon, New Orleans, for Mark Delesdernier.
    Thomas J. Toranto, Jr., New Orleans, for Succession of Ira Delesdernier, Sr., Paul Delesdernier, and Gayle Keene Ralph.
    King F. Nungesser, Jr., New Orleans, for Angie Neider Delesdernier.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   STOULIG, Judge.

Plaintiff, Gloria Delesdernier Gerald, has appealed a judgment dismissing on exceptions of “no cause and/or right of action” her suit asserting an heritable -interest in three tracts of land in Plaquemines Parish. She attacks two links in the title of George T. Armstrong, the present record owner, claiming (1) the land first came- into the Delesdernier family through simulated sales by her grandfather to two uncles and an aunt; and (2) a later transfer by these same collaterals to Armstrong is a nullity because the signatures of two of the vendors were forged with Armstrong’s knowledge.

Gloria Gerald is the grandchild of Julia Loga Delesdernier and George W. Delesder-nier and is their forced heir through representation of her father Chester 0. Delesder-nier, one of the children of George W. and Julia who predeceased both his parents. In addition she is a collateral heir of George 0. Delesdernier (her uncle) who died intestate without forced heirs. Her proportionate interest in each succession is not germane to our review.

We preface our discussion of the issue with a restatement of the general rule that allegations of the petition are accepted as true for the purpose of weighing the validity of an exception of no cause of action.. Documents incorporated in the petition by reference may be considered; however, evidence is inadmissible to controvert any assertions. C.C.P. art. 931; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Leidenheimer v. Schutten, 194 So. 32 (La.1940).

Plaintiff attacks as nullities the following acts registered in the conveyance office of Plaquemines Parish:

Sale by Albert W. Newlin, administrator of the Succession of Robert M. White, to Mark Delesdernier before Harold J. Rayl, late Notary, dated August 24, 1931 and registered in C.O.B. 72, Folio 114.
Sale by Albert W. Newlin, administrator of the Succession of Robert M. White, to Mark, George 0. and Shirley I. Delesder-nier before Harold J. Rayl, late Notary, dated October 29, 1931 and registered in C.O.B. 72, Folio 106.
Sale by Albert W. Newlin, administrator of the Succession of Robert M. White, to Mark, George O. and Shirley I. Delesder-nier before Harold J. Rayl, late Notary, dated November 14, 1931 and registered in C.O.B. 72, Folio 110.
Sale of property by Mark Delesdernier, Shirley Delesdernier Koehl, and George O. Delesdernier to George T. Armstrong, before Frank J. Lobrano, Clerk of Court and ex-officio Notary Public, on October 14,1933 and registered in C.O.B. 74, Folio 511.

The petition avers the first three sales are simulated transfers by George W. De-lesdernier to three of his children in that it was George W. who bid for the properties at public auction and paid the purchase price with funds belonging to the community of acquets and gains existing between him and Julia Loga. Gloria avers the designation of George W. as the agent for the three vendees in the respective acts is a sham.

As a general rule, a forced heir is barred from attacking transfers by his ancestors in authentic form by parol evidence. See Scurto v. LeBlanc, 191 La. 136, 184 So. 567 (1938) and Eberle v. Eberle, 161 La. 313, 108 So. 549 (1926), for cases discussing this rule, and the exceptions thereto.

Plaintiff alleges two irregularities in the acts attacked as simulated sales that she contends destroys their statuses .as authentic acts, namely: (1) the mandates for George W. Delesdernier to act for his various children are not in writing and are not made part of the acts; and (2) the proces verbal of the auction sale recites George W. Delesdernier is the purchaser without stating he was bidding in an agency capacity.

C.C. arts. 2996 and 2997 stipulate a power of attorney to buy or sell real property must be express; however, if the recited agency in a deed is not evidenced by a written mandate, the transaction is not an absolute nullity that may be voided by a third party attack. Rather, it is voidable by one of the parties to the act. Once the Delesdernier vendees sold to Armstrong they ratified the agency of their father and foreclosed any future attack on the validity of the mandate. Bolding v. Eason Oil Company, 178 So.2d 246 (La.1965).

Nor is the alleged conflict between the proces verbal and the authentic act a basis for nullifying the sale. Plaintiff suggests an unrecorded proces verbal is the contract of sale between the estate of White and George W. Delesdernier, rather than the authentic acts later passed to convey the titles on which George W. bid successfully. She relies on C.C. art. 2623, which states:

“The adjudication made and recorded by the sheriff, auctioneer or representative of the succession, is a complete title to the purchaser, and needs not be followed by an act passed before a notary.” (Emphasis added.)

The article does not apply to this case because the proces verbals upon which plaintiff rests her claim that George W. Deles-dernier was the actual purchaser were not recorded.

With respect to the White sales, George T. Armstrong is an innocent third party protected by the law of public registry. See McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909); R.S. 9:2721. But even if the unrecorded proces verbals were admissible and the reference therein to George W. Delesdernier were viewed in the light most favorable to plaintiff, the conflict between the authentic acts and the proces verbals would be resolved in favor of the recitations contained in those notarial acts. Carroll v. Scheen, 34 La.Ann. 423 (1882); Heirs of Nesom v. Weis, 34 La.Ann. 1004 (1882); McCall v. Irion, 41 La.Ann. 1126, 6 So. 845 (1889); and Hughes v. Edson, 129 La. 866, 57 So. 154 (1911).

We conclude, as did the trial court, that plaintiff’s petition attacking the three White sales as simulations states no cause of action.

However, with respect to the assertions that the 1933 Armstrong acquisition is a nullity because two of the vendors’ signatures were forged, plaintiff has stated a cause of action. Defendants argue to support their exceptions that Gloria is es-topped from attacking this act because the uncle through whose succession she asserts this claim subsequently ratified the 1933 transfer in other written transactions. And further that in accepting his succession unconditionally, Gloria could not repudiate any agreements made by the uncle through whom she claims title. (See C.C. art. 1013.)

To support their position, defendants introduced numerous exhibits that are not incorporated by reference in plaintiff’s pleadings. Defendants suggest we treat the exception leveled at the 1933 sale as one of no right of action. It is not. It is properly an exception of no cause of action. The exception of no right of action questions the capacity cf the plaintiff to sue, while no cause of action tests whether the pleadings and exhibits, if proved, afford a remedy at law. Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So.2d 375 (1945). Therefore, the exhibits introduced by defendant cannot be considered in passing on the exception of no cause of action. Soniat v. White, 146 La. 450, 96 So. 19 (1923).

Originally, the court referred the exceptions of no cause and no right of action to the merits; however, he rescinded this ruling and set the exceptions for argument after plaintiff prayed for a jury trial. Throughout argument on the exceptions, counsel for plaintiff repeatedly objected to admissibility of various documents. Defendants argue the documents were admitted without objection and accordingly expand the pleadings to incorporate them so that the Armstrong exhibits may be considered in deciding the exception of no cause of action.

In Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), the Supreme Court in a footnote stated evidence admitted without objection enlarged the pleadings and might be considered in a no cause of action ruling as well as in a trial on the merits. At issue there was whether a release attached to a third party pleading could be considered in an exception of no cause of action when it was admitted without objection. In Williams the release was also cognizable because it was offered in support of an exception of res judicata. In this case objections were urged but even if they had not been, we would not extend the Williams rule to permit defendant to try via exception what C.C.P. art. 1005 requires pleaded as an affirmative defense.

Because the petition alleges a forgery, the rule that an authentic act is full proof of the agreement is inapplicable for the purpose of deciding this exception. C.C. art. 2236. An exception of no right of action based on plaintiff’s want of interest is not available to defendant merely because he may have a valid defense. The various arguments of estoppel are affirmative defenses which must be raised and proved at a trial on the merits. (C.C.P. art. 1005.)

Intervening in the claim urged by Gloria are Angie Neider Delesdernier, Widow of Chester 0. Delesdernier; Paul Delesdernier; Succession of Ira Delesdernier; and Gayle Keene Ralph, as assignee of Beulah Delesdernier Keene. Counsel for interve-nors has asked for instruction to the trial court if this matter is remanded. They are entitled to intervene and there is nothing in the record that indicates this right is challenged. Therefore we comment no further.

For the reasons assigned the judgment appealed from is affirmed insofar as the exception of no cause of action is maintained on the alleged simulated sales and insofar as it orders cancelled from the conveyance records of Plaquemines Parish notices of lis pendens concerning these properties:

A) Sale of Property by Albert W. New-lin, Admr. of the Succession of Robert M. White and I. B. Rennyson, Auctioneer, to Mark Delesdernier before Harold J. Rayl, Notary Public, dated August 24, 1931, recorded at COB 72, folio 114, Records of Plaquemines Parish, State of Louisiana, conveying the following described property:
Fractional Section or Lot No. 24, T. 18, S.R. 16 East, of the Mississippi River.
Fractional Sections 16, 18, 20, 21, 22, 23, 26, 27, 29 T. 19, S.R. 17 E; and Sections or Lots 2 and 6, T. 19, S.R. 18 E.
Fractional Sections 21 and 46, T. 20, S.R. 18, E.
Fractional Sections 3, 6, 7, 9, xh of 10, 11, 12, 35, 40, 41, 43, 45, 48 and 49, in T. 21, S.R. 19, East. Fractional Sections or Lots 1, 3, 5, 7, 10, 11, 12 and 13, 14 in T. 22, S.R. 19 E; and
Fractional Sections 2, 3 T. 20, S.R. 19, and 8 in T. 21, S.R. 31, West of River. Fractional Sections or lots 7, 8, 9 and 11, in T. 24, S.R. 30 E.
Fractional Sections or lots 20, 21 and 22, in T. 24, S.R. 31 E, and all the land in the rear of Lots 28, 29, 30, 31, 32 and 33, and Sec. 34, in Township 22, S.R. 32 E.
Also a strip of land fronting on Main Pass bounded above by the United States Revenue Station, and below by Williams Pass (land of N. Gatlin not included.) All of said land lying and being situated in the Parish of Plaquemines, State of Louisiana.
Fractional Sections 22, 25 and 26, T. 22, S.R. 20 E. Also Island Head of Passes, in T. 22, S.R. 32 E., and East half of Section 10, and North half of North east quarter of Section 31, and SE Vi of Section 31, T. 22, S.R. 31 E, West of River. Frl. NW Vi of NE Vi of SW Vi and Frl. SE Vi of Section 21, T. 21, S.R. 31 E.W. of River. C.O.B. 57, folio 609.
B) Sale of Property by Albert W. New-lin, Admr. of the Succession of Robert M. White, and I. B. Rennyson, Auctioneer to Mark Delesdernier, George 0. Delesdernier and Shirley I. Deles-dernier before Harold J. Rayl, Notary Public, dated October 29, 1931, recorded at COB 72, folio 106, Records of Plaguemines Parish, State of Louisiana, conveying the following described property:
A certain tract of land situated on the left bank of the Mississippi River, and designated as unsurveyed lands on both sides of Scott Bayou rear lots 24 and 26 in T. 24, S.R. 31 E., 40 acres, lots or following sections 1 and 2 in T. 22, S.R. 31 E. Frl. Secs. 13 and 14 and 15 in T. 22, S.R. 31, E. Frl. Secs. 17 to 22, inclusive, in T. 22, S.R. 31. Frl. 2, 3, 4, 5, T. 22, S.R. 32, E. Lots 21 to 24 in T. 22, S.R. 32 E. Sec. 24 T. 24, R. 31E and Vi of lots or secs. 10 and 11, and unsurveyed Sea Marsh rear of lots or secs. 51 and 52 in T. 23 S.R. 31 E., undivided Vs interest into lots or secs. 8, 9 and 10 in T. 23, S.R. 31, E., and Vs interest in all of the unsurveyed Sea Marsh W. of lot 1 to 14 fronting on the River Bank of S.W. Pass in T. 23, S.R. 31 E. Undivided Vi interest of the unsurveyed Sea Marsh rear of lots 50, 53, 54 and 55, fronting on the left bank of S.W. Pass, being lots 7, 8, 9 and 12, in T. 23, S.R. 31, E., S.W. of River 1721 acres fresh marsh “B”. Island in S.E. Pass, lying in front of Lots 1 to 7 in T. 22, S.R. 33 East, West of River.
C) Sale of Property by Albert W. Newlin, Admr., of the Succession of Robert M. White, and I. B. Rennyson, Auctioneer to Mark Delesdernier, George 0. Delesdernier and Shirley I. Delesder-nier before Harold J. Rayl, Notary Public, dated November 14, 1931, recorded at COB 72, folio 110, Records of Plaquemines Parish, State of Louisiana, conveying the following described property:
Patent number 5466, dated March 12, 1896, in and to the lands described as all fractional in rear of that part entered by Thomas Bullen of section 13 half in T. 23, S.R. 31, East in the Southeastern Land District of Louisiana, west of river in the Parish of Plaquemines, containing one hundred and forty (140) and “/ioo acres, more or less. Patent 8426, dated February 6, 1902, in and to lands described as lot or fractional sections 11 and 13, fronting on the West Bank of Southwest Pass, and the east half of west half, and the west half of the east half of fractional section 5, in T. 23, S.R. 31, in the Southeastern district of Louisiana, West of River, Parish of Plaquemines, containing 305.26 acres. Lands described as West half of East half of section eight T. 23. Sr. R. 31, southeastern District of Louisiana, West of River, containing 170 acres more or less. Patent 5467, dated March 12, 1896, in and to lands described as East half of N.E. Vi of sections 19, T. 22, S.R. 31, East, Southeastern district of Louisiana, West of River, containing 80 acres. Patent number 4058, in and to lands described as 3800.40 thirty eight hundred and 40/ioo acres, lying in T. 22, S.R. 31, East, Southeastern district of Louisiana, West of River. Patent number 8435, of the State of Louisiana, in and to West half of N.E. Vi of Section 32, Southeastern district of Louisiana, West of River and under patent number 8435 in and to W half of S.E. Vt of Section 32, Southeastern district of Louisiana, West of River, Parish of Plaquemines, both of which are in T. 22, south of range 31, east, Southeastern District of Louisiana, West of River.

It is further ordered that the judgment maintaining the exception of “no cause and/or right of action” is reversed insofar as it dismisses that part of the petition alleging forgery and nullity of the 1933 Armstrong acquisition and the order of the trial court cancelling the notice of lis pen-dens as it affects the following realty is hereby vacated:

Act of October 14, 1933, by Mark Deles-dernier, Shirley Delesdernier Koehl, George 0. Delesdernier to- George T. Armstrong before Frank J. Lobrano, Clerk of Court and ex-officio Notary Public, recorded at COB 74, folio 511, Records of Plaquemines Parish, State of Louisiana, conveying the following described property:
CERTAIN TRACTS OF LANDS situated in the Parish of Plaquemines, State of Louisiana, and described as follows:
1.Patent number 5466, dated March 12, 1896, in and to the lands described as all fractional in rear of that, part entered by Thomas Bullen of section I3V2 half in T. 23, S.R. 31, East in the Southeastern Land District of Louisiana, West of River in the Parish of Plaquemines, containing One Hundred and Forty (140) and 30/ioo acres, more or less.
Patent 8426, dated February 6,1902, in and to lands described as lot or fractional sections 11 and 13, fronting on the West Bank of Southwest Pass, and the east half of west half, and the west half of the east half 6f fractional section 5, in T. 23, S.R. 31, in the Southeastern District of Louisiana, West of River, Parish of Plaquemines, containing 305.26 acres. Lands described as West half of East half of section eight T. 23, S.R. 31, Southeastern District of Louisiana, West of River, containing 170 acres more or less.
Being part of a larger tract acquired by the Vendors herein from Albert W. Newlin, Admr. of the Succ. of Robt. M. White, and I. B. Rennyson, Auctioneer by act passed before Harold J. Rayl, Notary Public, Parish of Orleans, on Nov. 14, 1931, and registered in C.O.B. No. 72, Folio 110, of Plaquemines Parish.
2. Fractional Sections or lots 20, 21 and 22, in T. 24, S.R. 31. Being part of a larger tract of land acquired by the Vendor herein Mark Delesdernier from Albert W. Newlin, Admr. of the Succ. of Robt. M. White, and I. B. Rennyson, Auctioneer, by act passed before Harold J. Rayl, Notary Public, Parish of Orleans, on August 24,1931, and registered in C.O.B. No. 72, Folio 114, of Plaquemines Parish.
3. A certain tract of land situated on the left bank of the Mississippi River, and designated as unsurveyed lands on both sides of Scott Bayou rear lots 27 and 26 in T. 24, S.R. 31 E. containing 40 acres. All of Sec. 24, T. 24, S.R. 31 E. All of their rights titles and interest in and to the following described lands, to-wit:
One-half (V2) of lots or secs. 10 and 11, and unsurveyed Sea Marsh rear of lots or secs. 51 and 52 in T. 23, S.R. 31 E. One-half (V2) interest of the unsurveyed Sea Marsh rear of lots 50, 53, 54 and 55, fronting on the left bank of S.W. Pass, being lots 7, 8, 9 and 12, in T. 23, S.R. 31 E.
One-third (Vs) interest in all of the un-surveyed Sea Marsh W. of lot 1 to 15 fronting on the right bank of S.W. Pass, in T. 23, S.R. 31 E.
Being the same property which was acquired by the Vendors herein by purchase from Albert W. Newlin, Admr. of the Succ. of Robt. M. White, and I. B. Rennyson, Auctioneer, by act passed before Harold J. Rayl, Notary Public, Parish of Orleans, on October 29th, 1931, and registered in C.O.B. No. 72, folio 106, of the Parish of Plaquemines. Excepting and reserving however, to the Vendors herein, all the oil and gas in the land sold, and to persons authorized by the vendors, the right to prospect for, mine, and remove such deposits from the same upon compliance with the conditions and subject to the provisions of sale.
Undivided Vs interest into lots or secs. 8, 9, and 10, in T. 23, S.R. 31 E.

Costs are to await final disposition of this matter.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Plaintiffs right to participate in her grandparents succession and in that of her uncle Dr. George O. Delesdernier and her proportionate interest in all three is discernable by reviewing the family genealogy set forth in Succession of Delesdernier, 184 So.2d 37 (La.App. 4th Cir. 1966).

      . The same result is reached for different reasons in Gloria Delesdernier, wife of Paul Marchand, et al. v. Estate of Julia Loga, wife of George W. Delesdernier, et al., and Delesdernier Estates, Inc., No. 8665; Succession of George W. Delesdernier, No. 8666; and Succession of Mrs. Julia Theresa Loga, wife of George W. Delesdernier, No. 8667, La.App., 354 So.2d 576.