author: DENNIS, Justice.

text:
    PARKWAY DEVELOPMENT CORPORATION et al. v. CITY OF SHREVEPORT et al.
    No. 58041.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied Feb. 25, 1977.

      John Gallagher, Roland J. Achee, Neil Dixon, Charles C. Grubb, Shreveport, for defendants-applicants.
    Sidney B. Galloway, Cook, Clark, Egan, Yancey & King, Arthur R. Carmody, Jr., Wilkinson, Carmody & Peatross, Shreveport, for plaintiffs-respondents.
   DENNIS, Justice.

This possessory action was instituted on March 31, 1975 by St. Louis Southwestern Railway Company, its lessee, Parkway Development Corporation, and John C. Kre-pak, an officer of Parkway, against the City of Shreveport and its Mayor, L. Calhoun Allen, Jr. The incident giving rise to the litigation was defendants’ forcible appropriation, through the actions of city police officers, of a piece of property which the Railway allegedly had possessed peaceably for over eighty years. Plaintiffs promptly filed suit seeking injunctive relief and damages, and after a hearing on the application for a preliminary injunction, the trial court enjoined defendants from disturbing plaintiffs’ peaceful possession of the subject property. Defendants appealed devolutively to the Second Circuit Court of Appeal, which affirmed the trial court’s ruling. We granted a writ of review primarily to consider whether a possessory action may be maintained against a municipality in the face of its claim that the disputed tract is public property.

Plaintiffs’ rights in the property derive from an 1888 ordinance of the City of Shreveport granting the Railway’s predecessor the right to “occupy and use” a one hundred foot wide strip along Commerce Street near the Red River. The original right-of-way extended from Cotton Street to Travis Street but for reasons which the record does not disclose, the Railway apparently abandoned the area between Travis and Texas Streets at an earlier date, so that the strip now in controversy runs 1,098 feet along three city blocks between Cotton and Texas Streets.

The Railway without interference constructed tracks, loading docks and other facilities on the property and leased portions of the strip to its patrons, who built warehouses and other commercial establishments thereon. In the mid-1950’s, under the administration of Mayor Clyde Fant, the City began planning to upgrade the riverfront area, and a civic theater and convention center were constructed between the Railway property and the river. In 1963 and 1964 the City leased from the Railway a small section of the disputed tract to develop a “beautification area.” After the Railway had removed its buildings in the area, the City planted grass and shrubbery, maintained it, and paid rentals under the lease until late 1973.

In 1968, the organizers of Parkway Development Corporation began negotiating with the Railway and the City for construction of a hotel-office complex over the railroad tracks on the property held by the Railway. John Krepak, an officer of Parkway, stated that the Railway was initially a reluctant participant in the negotiations, having some concern about the problems which might be created by the construction over its tracks. The City, on the other hand, embraced the plan enthusiastically, feeling that the proposed development would complement the adjacent civic facilities, and Mayor Fant encouraged plaintiffs to go forward with the development. Later that year, in connection with the proposed construction, the City Council granted plaintiffs air rights over the streets crossing the property. After obtaining authorization from the City Council, Mayor Fant, acting and signing on the City’s behalf, in 1969, “join[ed] in, approved] and ratified] insofar as [the City’s] interests [might] appear” a long term lease between Parkway and the Railway. The lease provided that the prior agreement between the Railway and the City, under which it had occupied the beautification area, would terminate immediately upon commencement of the proposed construction.

After the induction of a new mayoral administration in 1970, the City began to withdraw its support of the development project. When Parkway announced its readiness to begin construction in 1973, the City Council refused to issue either a zoning change or building permit, which Parkway was informed would be withheld until the City had determined whether Parkway’s construction would interfere with proposed public developments in the area. However, there was no immediate indication that the difficulties could not be worked out by cooperation between the parties. In October, 1973, Mayor Fant’s successor, Mayor L. Calhoun Allen, Jr., notified the Railway that since the City felt it held fee title to the subject tract, it considered the City’s 1963 and 1964 leases of the beautification area void, and declined to pay any further rentals. The Railway acquiesced in the cancellation of the leases, acknowledging that title to the property was uncertain, but specifically reserved its rights under the Parkway lease:

“This is done, however, with the express understanding that it is separate and apart from and without prejudice to our rights under our lease with the Parkway Development Corporation, to which lease the City is also a party.”

In December, 1974, Mayor Allen informed plaintiffs that the City would not countenance any private development in the area of the civic center.

On March 22, 1974 a city traffic engineer removed the City’s no parking signs around the disputed tract, but left the Railway no parking signs undisturbed; thereafter the public began parking on the property. Exactly one year later, on March 22, 1975, Krepak, apparently acting as an officer of Parkway, and with the Railway’s authorization, erected a temporary fence around the property in order to operate a private parking lot, a use consistent with the zoning laws. When Mayor Allen learned of this activity, he dispatched the city police to remove Krepak’s fence. This suit followed.

The issue presented for our consideration is whether plaintiffs are entitled to a preliminary injunction under Louisiana Code of Civil Procedure Article 3663(1), which makes this remedy available to “a plaintiff in a possessory action, during the pendency thereof.” Defendants contend that plaintiffs may not obtain the requested relief because two factors make their possessory action insupportable: 1) plaintiffs’ possession is merely precarious, and 2) the disputed tract is public property, which cannot form the subject of a possessory action.

Article 3656 of the Louisiana Code of Civil Procedure requires that the plaintiff in a possessory action be “one who possesses for himself,” and further explains:

“A person entitled to the use or usu-fruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself.”

Without determining the precise nature of plaintiffs’ interest in the property, we are satisfied that they claim possession of a real right therein. The 1888 grant gave the Railway, its successors and assigns the right to “occupy and use” the tract. This grant of privileges conferred upon the Railway what has been denoted as a “limited personal servitude.” Louisiana Code of Civil Procedure Article 3656 clearly entitles the holder of a real right to bring a posses-sory action. Louisiana Irrigation and Mill Company v. Pousson, 252 So.2d 151 (La.App. 3d Cir. 1971), affirmed at 262 La. 973, 265 So.2d 756 (1972).

Defendants contend, however, that since the grantee of a real right possesses both for himself and the owner, he may bring a possessory action only against third parties, and not against the acknowledged owner of the property. They call our attention to Article 3660 of the Louisiana Code of Civil Procedure and comment (b) of the Louisiana Code of Civil Procedure Article 3656, which provide:

Article 3660:
U * * *
“Subject to the provisions of Articles 3656 and 3664, a person who claims the ownership of immovable property or of a real right possesses through his lessee, through another who occupies the property or enjoys the right under an agreement with him or his lessee, or through a person who has the use or usufruct thereof to which his right of ownership is subject.”
Article 3656, comment (b):
“There is no conflict between this article and Art. 3660, infra. A person who is entitled to the use or usufruct possesses the property or right both for himself and for the naked owner, and hence either may bring the possessory action.”

These provisions do not militate the result urged by defendants. They merely establish that the owner of the property possesses through the grantee and may bring a possessory action against third parties who have disturbed or evicted him. But the grantee is a precarious possessor vis-a-vis the owner only insofar as the ownership of the property itself is concerned. Regarding his real right in the property, the grantee possesses for himself, and thus may bring a possessory action against the owner as well as others to be maintained in the enjoyment of that right. La.C.C.P. art. 3656. See, 3 A. Yiannopoulos, Louisiana Civil Law Treatise, § 49.

In any event, the City argues, a possesso-ry action cannot be maintained against property in the public domain. This is an issue which has given this Court considerable difficulty in the past and which is at present unsettled.

In Martin et al. v. City of Lafayette, 162 La. 262, 110 So. 415, 416 (1926), we held that “mere physical possession of public places, even though extending beyond a year, is not such a possession as entitles the possessor to maintain himself against the public until ousted by a petitory action; . the public is entitled, to enter thereon at once.” Although a determination of ownership is not appropriate in a possessory action, this holding necessarily puts title at issue whenever the defendant asserted that the property in dispute was public. See, Bruning v. City of New Orleans et al., 165 La. 511, 115 So. 733 (1928), and Moran v. City of New Orleans, 170 La. 499, 128 So. 290 (1930). For a period of time the matter was resolved legislatively by Act 82 of 1930, later La.R.S. 13:5061, which provided:

“Section 1. Be it enacted by the Legislature of Louisiana, That, whenever the State, a Municipality, Town or Village thereof, is sued as a defendant in a pos-sessory action brought by any person, firm, or corporation claiming to possess as owner, usufructuary, or claiming a real right to property, which is also claimed by the State, a Municipality, Town or Village thereof, to be public property constituting a locus publicus, then, in such cases the possessory and petitory actions shall be cumulated and the claim of title or real right vel non, of the person, firm, or corporation bringing such possessory action shall be tried contradictorily with the claim of title of the State, Municipality, Town or Village thereof, and any judgment rendered on the petitory phase of such suit shall carry with it a determination of the possessory action in favor of the party whose petitory claim has been affirmed and recognized. That all such cumulated actions of the character herein described shall be tried by preference in all courts.”

But the issue was again cast into doubt when La.R.S. 13:5061 was repealed by Act 32 of 1960. We cannot assume, as defendants urge us to do, that the act was repealed by mistake or that it has any current effect.

However, the present case does not require us to decide whether a possessory action may be maintained against corporeal property which the defendant alleges is public because plaintiffs are merely seeking to be maintained in the enjoyment of a real right under a grant from the City. The City’s ownership of the land is not in dispute, and the property’s allegedly public character is not necessarily incompatible with the rights plaintiffs have asserted. Yiannopoulos observes:

“It has been already stated that private ownership may well co-exist with dedication to public use. Further, in certain cases, private rights of use and exploitation may be accorded by the authorities or reserved by the private owner upon dedication of a thing to public use.” 2 A. Yiannopoulos, Louisiana Civil Law Treatise, § 36, p. 118 (1966).

The French law also distinguishes between an action for possession of public land itself and one for possession of an incorporeal right in the land. After stating that “[cjorporeal immovables can be the object of a possessory action bearing on the possession of the land itself only if they are in commerce [i. e., in the private domain] and, as such, susceptible of being acquired by adverse possession,” Aubry & Rau note:

“ * * * a private individual who exercised acts of use or enjoyment of something belonging into the public domain, by virtue of an administrative permit or simple tolerance, could bring a possessory action against [a] third party or even against the municipality which would interfere with this possession. The defendants can not plead in their own name that the property is imprescriptible for this exception is available only in public interest.” 2 C. Aubry & C. Rau, Droit civil francais, § 185, pp. 129, 135-36 (La.St.L. Inst, transí. 1966).

We conclude that when the object of a possessory action is possession of a real right in the land allegedly granted by a governmental body and not the land itself, it is irrelevant whether the property has been dedicated to public use.

Defendants raise a number of other issues which bear upon the merits of the possessory action rather than plaintiffs’ right to a preliminary injunction “during the pendency thereof.” However, because the pertinent facts were fully developed at the hearing below and both sides have argued the issues on appeal, we will dispose of them here.

First, defendants assert that the Railway’s single remaining track is insufficient possession to support plaintiffs’ action. Louisiana Civil Code Article 3432 provides:

“ * * * The possession of incorporeal rights, such as servitudes and other rights of that nature, is only a quasi possession, and is exercised by the species of possession of which these rights are susceptible.”

The uncontradicted testimony of plaintiffs’ witnesses reveals that until recent years the disputed strip was scattered with tracks, loading docks, and buildings erected by the Railway and its lessees. By these constructions, the Railway clearly established its possession of the right to “occupy and use” the tract. Having once acquired corporeal possession of the property, the Railway’s possession was preserved by its intention of possessing it — evidenced by the single track adverted to and the lease executed with Parkway of which the City, as a cosignatory, was obviously aware. La.C.C. arts. 3442-3444. Norton v. Addie, 337 So.2d 432 (La.1976); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975).

Next, defendants contend that the possessory action was not instituted within a year of the disturbance as required by Louisiana Code of Civil Procedure Article 3658 because the Railway’s possession of the beautification area was interrupted in 1973 when the City declined to pay any further rentals on it, and its possession of the remainder of the tract was disturbed on March 22, 1974 when the City removed its no parking signs, thereby opening the property to public parking.

In Liner v. Louisiana Land and Exploration Company, supra, we held that possession is not interrupted when it is merely disturbed: “[a] possessor does not lose possession against his consent unless he is forcibly expelled or unless the disturber usurps possession and holds it for more than a year [citing La.C.C. art. 3449].” 319 So.2d at 778. See also, Norton v. Addie, supra, and 2 C. Aubry & C. Rau, Droit civil francais, § 179 (La.St.L.Inst. transl. 1966).

Neither of the instances relied upon by defendants constituted an interruption of plaintiffs’ possession. The City’s refusal to pay rent on the beautification area cannot be considered a usurpation of that property in light of the City’s continued obligations under the Parkway lease, one of which was to vacate the property when construction commenced. The Railway tolerated the City’s non-payment of rentals on the express understanding that no prejudice would result to its rights under the Parkway lease. By failing to notify plaintiffs that its occupation of the beautification strip was adverse to their rights under the 1969 lease, the City relinquished any claim that this was an interruption of plaintiffs’ possession.

Also, if the City could usurp the property by the public’s parking on it, which we seriously question, this did not terminate plaintiffs’ possession because within a year, plaintiffs interfered with the public’s “possession” by installing a temporary fence around the tract.

Accordingly, the decision of the Court of Appeal is affirmed.

AFFIRMED.

DIXON, J., recused.

      . We do not here decide whether the authority granted by the City Council was co-extensive with that exercised by Mayor Fant in signing the lease. The issue raised by defendants as to the validity of the lease is irrelevant to this possessory action.

      . “Personal” is used here in the sense that the right is given for the benefit of a person rather than an estate. Such a servitude is, nevertheless, a “real” right:
      “Limited personal servitudes are real rights which confer on a person limited advantages of use or enjoyment over an immovable belonging to another person. They constitute an intermediate category between personal and predial servitudes. Like usufruct, use, and habitation, they are charges on things in favor of a person rather than an estate; like predial servitudes, they are necessarily charges on an immovable belonging to another person and are confined to certain advantages of use or enjoyment. Thus, they are both ‘personal’ and ‘limited.’ ” 3 A. Yiannopoulos, Louisiana Civil Law Treatise, § 123, pp. 404-405 (1968). See also, 3 A. Yiannopoulos, Louisiana Civil Law Treatise, § 125.
      The right might also be what is known in French law as a “concession.” See, 2 A. Yian-nopoulos, Louisiana Civil Law Treatise, § 36, pp. 118-119 (1966) and 1 M. Planiol, Traite elementaire de droit civil (La.St.L.Inst. transí. 1959) No. 3094, pp. 829-30.


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Alfred SEWELL, III.
    No. 58203.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied Feb. 25, 1977.

      Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   SUMMERS, Justice.

A true bill was returned by the grand jury of Lafayette Parish on September 8, 1975, charging that on August 25, 1975 Alfred Sewell III “committed aggravated kidnapping of one Dwight W. Andrus, Sr., in violation of the provisions of R.S. 14:44.” In a twelve man jury trial on January 20-22, 1976 Sewell was found guilty as charged by an eleven-to-one verdict and sentenced to imprisonment at hard labor for life.

According to the record, Sewell devised a plan to kidnap Andrus, a prominent citizen of Lafayette engaged in the real estate business. Having previously determined where Andrus lived, on the morning of August 25, 1975 Sewell waited for him at an intersection at which Andrus must stop on his way to work. When Andrus arrived at .the intersection and stopped, Sewell told him he had a flat tire. As Andrus got out of the car to inspect the tire, Sewell forced himself into the car and compelled him at gunpoint to drive away.

After driving some distance, Sewell demanded that Andrus call his son to bring $94,000, and say that the money was needed for a real estate transaction. Andrus convinced Sewell that such a plan would not work, but offered an alternative to the demand. ' He would go for the money at a bank where he could obtain $25,000 on his signature. Sewell said if Andrus would obtain' $35,000 and not alert the police he would accede to the plan.

With this understanding, Sewell drove to the bank. There he inserted an object in Andrus’ pocket, purportedly a listening device which would enable him to hear any utterance by Andrus. Andrus then walked into the bank while Sewell watched him from a distance. In preparing the check for the withdrawal at the teller’s window, An-drus scrawled a note alerting the teller, who summoned the police. Because of their prompt response to the summons, the police were able to arrest Sewell at the parking lot near the bank before he could escape. Andrus, of course, was freed. Based upon the undisputed fact disclosed in pretrial-proceedings that Andrus was liberated unharmed, the trial judge decided the case did not involve a capital offense.

Principally, on this appeal, the defense contends that error occurred when the trial court failed to consistently conduct the proceedings either as a capital or noncapital ease.

The argument is that this case should have been tried as a capital case. Article 44 of the Criminal Code defines aggravated kidnapping and prescribes the penalty as follows:

“Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
“(1) The forcible seizing and carrying of any person from one place to another; or
“(2) The enticing or persuading of any person to go from one place to another; or
“(3) The imprisoning or forcible secreting of any person.
“Whoever commits the crime of aggravated kidnapping shall be punished by death; provided that if the kidnapped person is liberated unharmed before sentence is imposed then the sentence of death shall not be given but the offender shall be sentenced to life imprisonment at hard labor.”

As the quoted aggravated kidnapping statute is understood, in effect, two separate offenses are defined: one is a capital offense in which the kidnapped person is not liberated unharmed before sentence; the other is a noncapital offense in which the sentence of death cannot be given, but the offender must be sentenced to life imprisonment at hard labor when the kidnapped person is liberated unharmed before sentence.

In the former case the trial should be conducted as a capital case; whereas, in the latter instance, when the kidnapped person is liberated before the trial begins, the procedure should conform with that prescribed for offenses involving a mandatory life imprisonment at hard labor. The purpose of the lesser penalty is to deter the kidnapper from harming his victim. Although the liberation of the kidnapped person in the instant case was not Sewell’s choice but came about as a result of police intervention, the liberation nevertheless removed the offense from the classification of a capital crime.

It was understood at the beginning that the trial would be conducted as a prosecution for a noncapital offense involving life imprisonment. Although the following entry in the minutes of court is not free of ambiguity, the inference unmistakably indicates that all parties agreed the case would be tried as a noncapital case:

“A stipulation was entered between the District Attorney and Defense stating that the jurors were [not] sequestered in a noncapital matter and that the jurors were charged that ten (10) concurring votes are necessary to render a verdict. The Court then-stated that this was so because there was no evidence to proceed with the capital punishment aspect of the article in question.”

During voir dire examination of the prospective jurors the District Attorney advised them: “The Defendant in this case is not subject to capital punishment; because the victim alleged by the State to have been kidnapped, was released unharmed, prior to this time. Therefore, the sentence that could be imposed by the court is life imprisonment.” There was no defense objection to this statement; nor did the trial judge dispel this understanding. Obviously the State was not seeking the death penalty.

Later, during his opening statement, defense counsel restated the understanding. Cautioning the jury to consider the gravity of the offense, he said, “You’re talking about the possibility of a conviction, and a subsequent life imprisonment in Angola. So you have to weigh this evidence very carefully.” Obviously the defense was not based upon the prospect of a death penalty. Instead the defense was based upon a charge punishable by life imprisonment.

Furthermore, in his charge to the jury, the trial judge instructed:

“In this case you may find one of four verdicts:
“(1) Guilty as charged, in which case the punishment shall be life imprisonment at hard labor.
“(2) Guilty of simple kidnapping, in which case the punishment would be a fine of not more than two thousand dollars or imprisonment, with or without hard labor, for not more than five years, or both.
“(3) The defendant has entered a plea of not guilty, coupled with a plea of not guilty by reason of insanity. Therefore, if you find that the defendant did in fact commit the crime charged, or any lesser included crime, but that he was insane at the time of the commission of the crime, then your verdict must be not guilty by reason of insanity.
“(4) Not guilty.”

By this instruction the trial judge again confirmed the understanding already expressed that this was not a capital case. There was, in effect, an expressed understanding and tacit agreement that the trial would be conducted as a noncapital case. United States v. Crowell, 498 F.2d 324 (5th Cir. 1974); United States v. McNally, 485 F.2d 398 (8th Cir. 1973); United States v. Crowell, 359 F.Supp. 489 (M.D.Fla.1978).

At no time was the death penalty considered applicable by the prosecution, the defense or the judge; nor was it mentioned to the jury as a possible penalty. United States v. Martinez, 536 F.2d 886 (9th Cir. 1976); Loux v. United States, 389 F.2d 911 (9th Cir. 1968). On voir dire examination of prospective jurors, defense counsel did mention a possible eleven-to-one vote by the jury during its deliberations. Based upon this statement he argues that he was laboring under the impression that this was a capital case requiring a unanimous verdict. Otherwise, he contends, reference to an eleven-to-one verdict was irrelevant to this trial. However, the object of the inquiry involving this hypothesis was to ascertain whether the prospective jurors would adhere to an independent judgment or be swayed by the judgment of eleven of their fellow jurors who had arrived at a contrary conclusion. This interrogation did not indicate that defense counsel or the jury labored under the impression that the trial was being conducted as a prosecution for a capital offense.

Although the defense alleges that the trial judge ruled at a bail hearing that this was a capital case, the record does not support such an allegation. To the contrary, the motion to reduce bond, and the minutes of court, more properly support the inference that this charge entitled defendant to be admitted to bail, as a matter of right the only issue being the amount. In a capital case, on the other hand, the person charged shall not be admitted to bail if the proof is evident or the presumption great that he is guilty. La.Code Crim.Pro. art. 313. The record does disclose that defendant’s bail bond was fixed before indictment, even before the defense moved for the reduction, a practice which could not ordinarily be expected in a capital case. As a result of the hearing on the motion to reduce, the bond was reduced from $350,000 to $100,-000.

Contrary to the defense contention that this was a capital case because the State, at this bail hearing, presented evidence on the merits of the charge, the State’s presentation, if there was one, could just as well have been to support the seriousness of the offense and the weight of the evidence against defendant. These are factors bearing upon the determination of the amount of the bail. La.Code Crim.Pro. art. 317. Then, after the indictment was returned, the minutes indicate that a motion was made to reduce the bond further, but the bond was allowed to stand as previously set. La.Const. art. I, § 18 (1974); La.Code Crim. Proc. arts. 311-314. Because defendant’s entitlement to bail was apparently never at issue, only the amount, the inference is that this was not considered to be a capital case.

Having concluded that this prosecution is not governed by the procedure prescribed for- the. trial of capital cases, the assignments of error, based on the premise that this trial should have been conducted as a prosecution for a capital offense, are without merit.

Thus, it was not necessary, as the defense contends, to sequester the jury in this non-capital case until after the court’s charge. La.Code Crim.Pro. art. 791. It was also proper to instruct the jury that ten of the twelve must concur to find a verdict. La. Const, art. I, § 17 (1974); La.Code Crim. Pro. art. 782.

In the alternative, the defendant contends that if the Court should find that this prosecution did not involve a capital offense, he should have been informed at arraignment of his right to waive a jury trial and his right to elect to be tried by the Court. The issue is presented in a motion for a new trial.

Article 780 of the Code of Criminal Procedure is relied upon to support this position. The article declares:

“A defendant charged with any offense except a capital offense may knowingly and intelligently waive a trial by jury and elect to be tried by the court. At the time of arraignment, the defendant in such cases shall be informed by the court of his right of waiver and election.”

See also La.Const. art. I, § 17 (1974).

At the arraignment on October 15, 1975 defendant was represented by able, experienced and competent counsel. He was formally arraigned and entered a plea of not guilty and not guilty by reason of insanity. The Court then granted the accused fifteen days to file motions and pleadings.

Consequently the judge did not comply with Article 780 in that he did not inform defendant of his right of waiver and election. Defendant was apparently, at the time, uninterested in waiving his right to trial by jury, for no motion to be tried by the judge alone was made in the time allotted. Indeed, defense counsel participated in the selection of the jury without objection in the full knowledge that this was a noncapital ease, as our inspection of the record has disclosed.

The Constitution guarantees a jury trial in a case such as this where the punishment is necessarily confinement at hard labor; and it also provides that, except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury. La.Const. art. I, § 17 (1974). The right to waive jury trial in this case is, therefore, a constitutional right, but the right to be informed of this right is contained in a statutory directive found in Article 780. Thus, we are not concerned with the waiver of the right to waiver, a constitutional right, but, instead, our concern is with noncompliance with a statutory directive to inform of the right to waiver.

Because the general rule is that an accused is entitled to a jury trial in such a case as this, a problem is more often presented by a claim that trial by jury was not intelligently waived. See State v. Kavanaugh, 203 La. 1, 13 So.2d 366 (1943); State v. Williams, 202 La. 374, 11 So.2d 701 (1942); State v. Robinson, 43 La.Ann. 383, 8 So. 937 (1891); State v. Touchet, 33 La.Ann. 1154 (1881).

In a recent unanimous decision of this Court the issue in the case at hand was presented when the defendant attended the arraignment with his court appointed counsel and was not specifically advised by the trial judge of his right of waiver and election. Nevertheless, in State v. Sharp, 338 So.2d 654 (La.1976), the Court, concluded:

“. . . Defendant has not been sufficiently prejudiced thereby, in this case, to warrant reversal of his conviction.
“First of all we review the merit of the contention, notwithstanding that he filed the inappropriate motion for a new trial rather than the motion in arrest of judgment, to raise the issue.
Grounds for arrest of judgment
The court shall arrest the judgment only on one or more of the following grounds:
(4) The tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code;”
“While Article 780 does state that the defendant shall be informed by the court of his right to waiver and election, the constitutional provision, Article I, § 17, merely relates that defendant may knowingly and intelligently waive his right to a trial by jury. While we are disinclined to treat this statutory directive lightly, we are equally satisfied that this defendant did not suffer deprivation of a substantial statutory right (see Article 920), that is, of being advised by the court of his right to waiver and election, since we are satisfied that through informed, able and experienced counsel he was aware of the right to waive the jury and did opt not to do so. Counsel in argument candidly admits that, in effect, the crux of his argument is simply that defendant should have been instructed appropriately by the trial judge at his arraignment. He does not argue that he was not aware of the option, nor that he did not deliberately exercise it. He likens the directive of Article 780 to the on-the-record requirement of a Boykinization. We do not sanction and will not hold to a hard and fast rule to the effect that failure of the court to verbalize the option at arraignment of defendant necessarily constitutes reversible error. We are satisfied in this case that defendant was aware of his option through advice of counsel and opted to be tried by jury and not waive that right.
“The trial judge’s omission in this case was not prejudicial to defendant.”

All of the factors which influenced the decision in State v. Sharp are present in the instant case. For the reasons assigned there and those assigned herein this defense contention is also without merit. The conviction and sentence are therefore affirmed.

       La.C.Cr.P. art. 859 as amended provides as follows:


author: TATE, Justice.

text:
    Mrs. Tatiana Turan DUE, Plaintiff-Respondent, v. Paul H. DUE, Defendant-Relator.
    No. 58226.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied Feb. 25, 1977.

      Felix Weill, David W. Robinson, Watson, Blanche, Wilson & Posner, Baton Rouge, A. N. Yiannopoulos, Baton Rouge, of counsel, for defendant-relator.
    John J. McCann, New Orleans, Janet Mary Riley, New Orleans, of counsel, for plaintiff-respondent.
   TATE, Justice.

The issue before us is: Are a lawyer husband’s contingent fee contracts pending as of the date of the dissolution of the marital community to be included in the accounting of the community assets as between the husband and his wife?

A wife here sues her former husband, an attorney, to set aside a community property settlement on the ground of fraud and lesion. She also prays that the court order an inventory of the assets of the former community, in order to partition it between the spouses.

Her discovery interrogatories included inquiries as to contingent fee contracts entered into by her husband in his law practice for a period during the marriage preceding the date of dissolution of the community.

The defendant husband objected to these interrogatories. He contends that contingent fee contracts which were not consummated when the community dissolved did not fall within the community of acquets and gains.

The trial court sustained the husband’s contention. It concluded that such contracts do not form part of the community because no interest is vested in the attorney until the contract is completed by successful disposition of the case.

The court of appeal granted supervisory writs and reversed. 331 So.2d 858 (La.App. 3d Cir. 1976). It reasoned that a contingent fee contract from the date of its execution creates a right to share in the eventual proceeds (albeit subject to successful conclusion of the litigation), and that this right constitutes a property right which falls into the community, although its value can be determined only when the proceeds are realized. When realized, the interest in the community is determined in the proportion that the value of the husband’s services rendered at the date of the community’s dissolution bears to the total services performed by the husband in earning the fee.

Because of the importance of the issue, we granted certiorari, 337 So.2d 518 (La. 1976), to review the husband’s contention that a contingent fee contract cannot be included in the community because it creates no property right prior to completion of the attorney’s work after the community’s dissolution.

I.

In Louisiana, all property acquired by the labor and industry of the spouses during the marriage belongs to the community of acquets and gains existing between them. Civil Code Articles 2402, 2405, 2334. Included among the assets of the community, thus subject to inventory and spouses’ joint ownership at the community’s dissolution, are obligations based upon the right to receive money to become due in the future, even though this right is contingent upon the happening of an event at a future time. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956). See also T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976).

The defendant husband contends, however, that this principle does not apply to an attorney’s contingent fee contracts. He argues:

(1) A contingent fee contract, depending on an uncertain event (winning or compromising the litigation), is an aleatory contract, Articles 1776, 2982, which creates no obligation until the happening of the event;

(2) Even if the contingent fee contract is a conditional obligation creating contemporaneously a right to enforce it upon happening of the condition, Article 2041, the right so created is only of specific enforcement, not to vest it retroactively to the contract’s creation, Wampler v. Wampler, 239 La. 315, 118 So.2d 423 (1960);

(3) Further, however classified, the contingent fee contract has no ascertainable value prior to successful completion of the work; it therefore does not form part of his patrimony at any earlier time.

II.

We ultimately conclude that, whatever the theoretical nature of the right, a contingent fee contract creates in the husband a patrimonial asset, i. e. (in ordinary language) “property”, which is acquired by him during the marriage, Article 2334, and which (to the extent that his labor and industry contribute during the marriage, Article 2402) is an asset of the community existing between his wife and himself at the time of its dissolution, Article 2405.

A contingent fee contract executed between a client and his attorney is legislatively recognized as creating in the attorney an enforceable right to share in the proceeds eventually recovered. La.R.S. 37:21s. The obligation in his favor is, of course, subject to the suspensive condition that the outcome will be favorable, Articles 2021, 2043, and to the implied resolutory condition his interest may be divested if he does not perform the contractual services expected of him, Articles 2021, 2046.

Nevertheless, “The contract of which the condition forms a part is, like all others, complete by the assent of the parties * * * Article 2028. As noted at Pla-niol, Civil Law Treatise, Volume 1, sec. 319, p. 216 (LSLI translation, 1950): “The owner or creditor ... is not therefore, properly speaking, either an owner or a creditor as long as the condition is still pending. The simple possibility of the realization of the condition, nevertheless, constitutes a chance which is already considered an asset or liability.”

III.

The defendant’s characterization of the contingent fee contract as aleatory, Articles 1776, 2982, or as involving a revocable mandate by the client for the attorney to render legal services for him, Articles 2985, 3028, does not convert the attorney’s property interest in the contract into a non-asset.

(a) Aleatory contract:

The attorney’s interest is “contingent” in the sense that he will be compensated for his efforts and will receive a benefit under the contract only in the uncertain event that a favorable judgment or settlement is arrived at. To this extent, the contract is an aleatory one, in which the rights and obligations of the parties depend on the happening of an uncertain event and there is a chance of either gain or loss. Articles 1776, 2982. See: 6 Litvinoff, La. Civil Law Treatise, Obligations, sections 105, 108 (1969); Planiol, cited above, Volume 2, sections 954-956.

However, the distinction between contracts which are certain, on the one hand, and aleatory contracts, on the other, has no significance with regard to whether the contract creates an obligation which may be a property right. The code definitions “only . . . signify that a contract which is certain is exactly the opposite of an aleatory one, meaning that it gives rise to obligations which are pure and simple, neither of which is subject to a condition.” 6 Litvinoff, previously cited, p. 193.

(b) Revocable mandate:

As with any other contract for the services of an attorney a contingent fee contract, as the decisions cited by the defendant show, involves a mandate or agency by which the client empowers the attorney to act for him. Article 2985 et seq. The contingent fee contract is thus subject to the rules of mandate, including revocation at the will of the client-principal (Article 3028; see, e. g., Foster, Hall, Barret & Smith v. Haley, 174 La. 1019, 142 So. 251 (1932)), and expiration on the death of the attorney-agent (Article 3027, see, e. g., Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir. 1962), certiorari denied).

Nevertheless, where the relationship is terminated at the will of the client, the attorney may recover at least the value of his services performed prior to termination. See, e. g.: Smith v. Westside Transit Lines, 313 So.2d 371 (La.App. 4th Cir. 1975), writ denied 318 So.2d 43, Guilbeau v. Firemen’s Fund Ins. Co., 293 So.2d 216 (La.App. 3d Cir. 1974); Wright v. Fontana, 290 So.2d 449 (La.App. 2nd Cir. 1974).

Likewise, where the attorney-client relationship is terminated as a result of the attorney’s death, his heirs may recover for the value of his services prior thereto. See, e. g.: Succession of Payne, 155 La. 177, 99 So. 29 (1923); Pittman Construction Co. v. Housing Authority of New Orleans, 183 So.2d 343 (La.App. 4th Cir. 1966), certiorari denied 249 La. 376, 186 So.2d 627 (1969); Annotation, Attorney’s Death Prior to Final Adjudication or Settlement of Case, As Affecting Compensation Under Contingent Fee Contract, 33 A.L.R.3d 1375 (1970). See also Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La.1976).

Accordingly, we find no merit to the defendant’s argument that, somehow by reason of technical characterization, no economic value should be attributed to an attorney’s interest in a contingent fee contract until the successful prosecution of the claim entitles him to actual compensation for his services.

IV.

Our code articles refer to the community’s ownership of the “produce of the reciprocal industry and labor of both husband and wife”, Article 2402, and of the property “acquired by the husband and wife during marriage”, Article 2334. At the dissolution of the community, “all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.” Article 2405.

The intent, we believe, is that all property (in the broad sense of the word) is to form part of the community, if acquired during the marriage (with the narrow and non-applicable exceptions noted). Property, in its broad sense, denotes all patrimonial rights. 2 Yiannopoulos, Louisiana Civil Law Treatise, Property, Section 1 (1967). The civil law concept of patrimony includes the total mass of existing or potential rights and liabilities attached to a person for the satisfaction of his economic needs. Yiannopoulos, above cited, Section 77; Creech v. Capital Mack, Inc., 287 So.2d 497 (La.1973). In general, “[pjatrimonial rights are those susceptible of pecuniary evaluation, and which, for this reason, may form part of a person’s patrimony.” Yiannopolous, Louisiana Civil Law System, Section 70, p. 243 (1971).

An attorney’s rights under a contingent contract, whatever their nature, clearly have pecuniary value. We have noted above that the attorney himself, or his heirs, have enforceable rights that arise even before final completion of an attorney’s services. The valuation of these interests in pending contracts have arisen, for example, in suits by former law partners for a division of the assets following dissolution of the partnership. Trice v. Simon, 233 So.2d 609 (La.App. 3d Cir. 1970).

We therefore hold that the attorney’s interest in pending contingent fee contracts constitutes a patrimonial asset which, if the contract is acquired during the marriage, forms part of the community insofar as its value is based upon the attorney’s services performed during the marriage.

V.

Because of the limited scope of the issues before us at this time, we do not find it necessary to determine just when a wife may obtain her share of the interest of the community in her husband’s contingent fee contract attributable to his services during the marriage. With the case in its present posture, it is sufficient to hold that she is entitled to obtain information sought by her interrogatories as to the existence of such contracts acquired during the marriage and as to indicia of their value, whether at the time of dissolution of the community, or (if the husband’s services were thereafter completed, on the contract) as of the date of the inventory sought.

It is sufficient now to note that she is entitled to this information and to inclusion of these assets in an inventory of the community’s property, whether, as the court of appeal held, her right to share in the community’s share of the proceeds does not accrue until the fee is collected, cf. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169, 174-75 (1956), or whether, as suggested in oral argument, she is entitled to a present accounting in the partition of the community from her husband for her share of the estimated value of the community interest at the date of its dissolution. Aside from not wishing at this time to pass in the abstract upon a theoretical issue as to which an evidentiary basis has not yet been presented, an additional reason we avoid doing so is that the issue may not actually arise, should the parties agree to amicable partition and settlement in accordance with the principles noted.

As to an ancillary point, we should note that the court of appeal correctly held that any contingent fee contracts which are the property of the defendant’s law partnership cannot be considered as assets of the community. The partnership is a separate entity. However, the husband’s interest in the partnership is, to the extent acquired during the marriage, a community asset the value of which should be included in the inventory. Dubuisson v. Moseley, 232 So.2d 870 (La.App. 3d Cir. 1970).

Decree

For the reasons assigned, we affirm the judgment of the court of appeal requiring response to the interrogatories, and we remand this case to the district court for further proceedings consistent with the views here expressed. All costs of supervisory review are taxed against the defendant; all other costs to await the final disposition of this case.

AFFIRMED AND REMANDED.

      . La.R.S. 37:218 provides:
      “By written contract signed by his client, an attorney at law may. acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution . or defense of which he is employed, whether the claim or suit be for money or for property. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise , dispose of the suit or claim. Either party to the 'contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition had been made.”

      . The commentators note that the only legal consequence of the distinction between aleatory contracts and those which are certain is that an aleatory contract is not subject to action for recission for lesion, since the chance of loss is ■ of the essence of that kind of contract, Litvi-noff, Section 105, Planiol, Section 958, and that possibly, for the same reason, non-performance of an aleatory contract is not excused by unforeseen events or irresistible forces, Litvinoff, Section 109.

      . We note that our result in this regard is in accord with that reached in other jurisdictions which have considered the matter. See, e. g.: Comm. of Internal Revenue v. King, 69 F.2d 639 (5th Cir. 1934); In re Monaghan’s Estate, 60 Ariz. 342, 137 P.2d 393 (1943); Waters v. Waters, 75 Cal.App.2d 265, 170 P.2d 494 (Cal.App. 4th Dist. 1946), noted 20 So.Cal.L.Rev. 281. But see Land v. Acadian Production Corp. of Louisiana, 57 F.Supp. 338 (W.D.La.1944), reversed on other grounds, 153 F.2d 151 (5th Cir. 1946).

      . If the husband (being unable to sell or to assign his interest in the fee to his wife) is entitled to retain the interest in the contingent fee contract acquired during the community, he might be required to account to the community in the partition of its assets for the value of its interest in the contract at the date of the community’s dissolution. A comparable procedure is followed in the partition of successions, where an heir desires to retain instead of return property subject to collation. Articles 1333, 1356, 1359.

      . In the everyday world, when a partnership dissolves or a partner withdraws from his law firm, the valuation of the interest of a lawyer in the contingent fee contracts and the appropriate accounting has usually been accomplished by agreement, without undue difficulty, on the basis of informed estimates as to the prospective recovery or settlement value of each case, the chances of loss, and the amount of work involved before and after the dissolution or withdrawal.

      . See also Lopez v. Lopez, 38 Cal.App.3d 93, 113 Cal.Rptr. 58 (Cal.App.1974) and Annotation, Evaluation of Interest in Law Firm or Medical Partnership for Purposes of Division of Property in Divorce Proceedings, 74 A.L.R.3d 621 (1976) for discussions of the valuation of a spouse’s community interest in an on-going partnership.


author: MARCUS, Justice.

text:
    John H. MORGAN, Ind. v. MATLACK, INC., et al.
    No. 58248.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Whit M. Cook, II, Chapman L. Sanford, Baton Rouge, for plaintiff-applicant.
    Frank M. Coates, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

On November 3, 1973, Dan Morgan was injured while riding as a guest passenger in a 1964 Volkswagen owned by I. 0. Mestayer and operated at the time of the accident by Robert G. Gutierrez. John H. Morgan, individually and as administrator of the estate of his minor son, Dan Morgan, instituted suit against Cumis Insurance Society, Inc., the insurer of the Mestayer vehicle, contending that Robert G. Gutierrez was an omnibus insured under the Mestayer policy. Cumis moved for and the trial court granted summary judgment in favor of Cumis on the ground that Gutierrez was not an omnibus insured under the Mestayer policy inasmuch as he was driving the car without the permission of the named insured, I. 0. Mes-tayer.

From this judgment dismissing Cumis as a defendant in the lawsuit, plaintiff appealed. The appeal court affirmed the summary judgment granted below finding no dispute as to a genuine issue of material fact. 331 So.2d 568 (La.App. 1st Cir. 1976). We granted certiorari to review the correctness of this judgment. 337 So.2d 518 (La.1976).

The sole issue presented for our review is whether, based on the pleadings, affidavits, depositions, and other evidence filed by both parties pursuant to the defendant’s motion for summary judgment, a genuine issue of material fact was presented as to whether Robert G. Gutierrez was driving the Mestayer Volkswagen at the time of the accident with the permission of the named insured, I. 0. Mestayer.

In support of its motion for summary judgment, Cumis offered the affidavits of I. 0. Mestayer and Christopher Mestayer, both indicating that the vehicle occupied by Dan Morgan and driven by Gutierrez, a 1964 Volkswagen, was made available for the use of Christopher Mestayer by his father with instructions that no one else be allowed to operate the vehicle. In opposition to Cumis’ motion, plaintiff filed the affidavit of Robert Gutierrez suggesting that he offered to drive the car on the occasion of the accident as an accommodation to Christopher Mestayer and Dan Morgan. Plaintiff also filed in opposition to defendant’s motion the depositions of I. 0. Mestayer and Christopher Mestayer which in some respects conflicted with their affidavits and disclosed more fully the following facts relating to this litigation.

During the summer of 1973,1. 0. Mestayer purchased for a nominal sum a 1964 Volkswagen. After the car was extensively overhauled by his son, Christopher, and several school friends, Mr. Mestayer furnished the car for Christopher’s use going to and from school, for errands, and in the neighborhood. Christopher was given his own key to the Volkswagen and the use of the family gasoline credit card. Christopher stated in deposition that he was the principal operator of the vehicle and that it was regarded as his own by all of his friends. Although Mr. Mestayer held title to the car, he had driven it on only a few occasions. While he had not specifically singled out the Volkswagen, Mr. Mestayer claimed that he had periodically instructed all of his children not to lend the family cars to anyone “unless, of course, it was an emergency or the circumstances warranted that they had to." (Emphasis added).

On the night in question, sixteen-year-old Christopher drove the Volkswagen to a post-football game levee bonfire party. Shortly after he arrived, Christopher was approached by Dan Morgan who asked if he could borrow the Volkswagen to go to a local convenience store for beer since no refreshments were provided at the party. Considering Morgan to be already “high,” Christopher refused to lend him the car. He agreed, however, to let Morgan’s companion, Robert Gutierrez, use the vehicle for this purpose, expecting that he would probably be given some of the beer. Young Christopher was one of a group of boys in charge of the party and responsible for collecting money to defray expenses connected with the bonfire. This, he admitted, was “more or less why I did not go and drive the car myself.” En route to the Pak-a-Sak, the Volkswagen driven by Robert Gutierrez was involved in a collision with a tractor trailer. Dan Morgan, who had accompanied him in the vehicle, sustained personal injuries and medical expenses.

The policy written by Cumis Insurance Society on the Mestayer Volkswagen included an omnibus clause extending liability insurance coverage to

any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission. . . . (Emphasis added.)

The named insured in the Mestayer policy is I. 0. Mestayer.

In previous cases before this court, we have been faced with the issue of whether the grant of an unrestricted permission by the named insured to a first permittee or other insured to use a vehicle carried with it an implied permission for that person to subsequently allow the vehicle’s use by a third party. Hughes v. Southeastern Fidelity Insurance Co., 340 So.2d 293 (La.1976); American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734 (1961). In the instant case, Mr. Mestayer admitted that, while he had generally admonished his children against lending the family cars, he had given them an express permission to allow third persons to use the vehicles “in emergencies and when circumstances warranted that they had to.” (Emphasis added). We are of the opinion that when a named insured grants an express permission to a first permittee or other insured to lend a vehicle under certain non-specific circumstances and invests that permittee or insured with discretion to determine when those circumstances exist, he cannot thereafter complain when the discretion is exercised and a second permittee is allowed to use the vehicle. Whether or not the nature of the permission granted in the instant case constituted a delegation of discretion to lend the car which, when exercised, amounted to permission from the named insured presents a genuine issue of material fact.

The law is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

After reviewing the documents in evidence offered by both parties and resolving all doubts against the mover as required by law, we are convinced that there is a genuine issue of material fact between plaintiff and Cumis and, hence, are of the opinion that the latter is not presently entitled to a judgment as a matter of law. Accordingly, the judgment of the court of appeal upholding the summary judgment granted in favor of Cumis Insurance Society, Inc. was improper.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside, the motion for a summary judgment is overruled, and the case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed. All costs incurred in connection with the motion for a summary judgment shall be paid by Cumis Insurance Society, Inc. Assessment of other costs is to await the final determination of the litigation.

      . In the same suit, plaintiff also sought recovery from State Farm Mutual Insurance Company, Inc. (liability insurer for Robert G. Gutierrez), Matlack, Inc. (employer of Douglas M. McEvers, who was driving the other vehicle involved in the collision while allegedly engaged in the course and scope of his employment), Louisiana Department of Highways, and the Parish of East Baton Rouge. These parties are not involved in this appeal.


text:
    STATE of Louisiana v. Shedrick NOBLE.
    No. 58461.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Peter J. Compagno, George M. Leppert, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Shedrick Noble was indicted by the grand jury for the Parish of Orleans for committing aggravated rape in violation of La.R.S. 14:42. After trial by jury, he was found guilty as charged and sentenced to death. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

The record reflects the following facts. On Easter Sunday, April 14, 1974 at about 5:00 p. m., Mrs. Arlene Craig left her home to go to a neighborhood drugstore leaving her two daughters, Cortina aged two, and Tyra, aged four, at home with the defendant Shedrick Noble. Noble was not related to the family by blood or marriage but had been living with Mrs. Craig for several months. Mrs. Craig testified that, when she returned from the drugstore approximately forty minutes later, defendant was standing by the bathroom shower and that bed linens which he had just washed were hanging over the bathroom door. She further stated that Tyra was unusually quiet and subdued.

Two days later, Tyra’s great-grandmother, who was keeping her for a few hours while Mrs. Craig did some errands, discovered that Tyra was bleeding profusely from the genital area. After contacting Mrs. Craig, Tyra was rushed to Charity Hospital where she was examined by the Assistant Coroner, Dr. George L. Bailey, who testified that the child’s vagina had been entered by some object too large for it to accommodate, resulting in severe third-degree tissue tears. After questioning by her grandmother at the hospital, Tyra admitted that the defendant Shedrick Noble had raped her.

At trial, the child was at first reluctant to recount the specific details of the rape. After a brief fifteen-minute recess, however, she related how defendant had raped her and then washed both of them off as well as a spread which had been bloodied during the incident.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in holding that Tyra, age five at the time of trial, was competent to testify. He argues that the young rape victim lacked sufficient understanding to be a witness (Assignment of Error No. 2). Defendant further assigns as error the ruling of the trial judge denying his motion for a mistrial wherein he reurged the issue of Tyra’s competency and complained of the delay caused by a brief recess granted during the child’s testimony (Assignment of Error No. 3).

La.R.S. 15:469 provides:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

The trial judge examined the child in full compliance with the statutory requirement. Tyra stated clearly that she believed in God and knew that she should always tell the truth. Furthermore, her responses to the trial judge’s questions concerning her name and address, the school where she attended kindergarten, her mother’s absence at the time of the rape, and the events just prior thereto all demonstrated understanding and intelligence. Although the child was at first unresponsive to questions concerning the physical aspects of the crime, she explained the rape after a brief recess with clarity and perception suitable to her tender age.

This court has consistently held that the trial judge is vested with wide discretion in determining competency. On appeal, his ruling is entitled to great weight as he has had the advantage of seeing and hearing the child. State v. Francis, 337 So.2d 487 (La.1976); State v. Johanson, 332 So.2d 270 (La.1976); State v. Pace, 301 So.2d 323 (La.1974). We find no abuse of discretion by the trial judge in his ruling that this five-year-old girl, the victim of the crime, was competent to testify.

After Tyra had been on the witness stand for approximately ten minutes and had already testified that the defendant had called her to his bed and removed her underwear, the state asked the child to recount the specific details of the rape. At this point, the little girl began crying and was unresponsive to the repeated question, “what happened when Shag pulled your underwear down?” At the suggestion of the district attorney, Tyra indicated that she would like to rest for a minute, whereupon, the trial judge granted a short recess so that the child could regain her composure. When Tyra again took the witness stand, defense counsel moved for a mistrial contending again that the witness was incompetent to testify and alleging that the delay in her testimony was inflammatory. The trial judge denied defendant’s motion for a mistrial, pointing out that the recess had been extremely brief and that the child had become unresponsive only when questioned about the physical details of the crime, which, in view of the nature of the crime and the age of the victim, was understandable. We find no abuse of discretion in this ruling of the trial judge.

Defendant contends for the first time in brief that Tyra’s testimony was coached during the recess granted while she was on the stand. This claim is not properly before us for review; new grounds for an objection cannot be raised for the first time on appeal. La.Code Crim.P. art. 841; State v. Marks & Jones, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976). In any event, there is no evidence in the record to substantiate defendant’s assertion.

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

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in allowing the victim’s grandmother to recount statements by the child concerning the rape two days after its occurrence while she was being treated at Charity Hospital. Defendant argues that this testimony constituted inadmissible hearsay inasmuch as the statements of the victim were too far removed from the event to be considered admissible under the res gestae exception to the hearsay rule.

La.R.S. 15:447 provides that res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. A statement made fully two days after an event cannot ordinarily be considered to have been made under its immediate pressure.

We have recognized, however, that in prosecutions for sex offenses, the better rule is that the original complaint of a young child is admissible when the particular facts and circumstances of the case indicate that it was a product of the shocking episode and not a fabrication. State v. Pace, 301 So.2d 323 (La.1974).

In the instant case, four-year-old Tyra was rushed to Charity Hospital because she was bleeding profusely from the genital area. The assistant coroner testified that the child’s vagina “had been ripped apart all the way down to the wall of the rectum beneath it.” Tyra’s mother testified that there were many people in the room during the examination conducted by the coroner and the treating physician and that numerous police photographs were taken of the child’s injury at this time. Mrs. Johnson, the child’s grandmother, testified that when she arrived at the hospital the little girl was screaming and hysterical. She attempted to comfort the child while staff members held her down so that a urine sample could be obtained. Mrs. Johnson testified that she has an especially close relationship with Tyra and that, while the child was waiting to be formally admitted into the hospital, she assured her that she need not be afraid and asked Tyra to relate what had happened. Tyra thereafter admitted that the defendant, whom she referred to as “Shag,” had “touched her down there.” The record substantiates the determination of the trial judge that this report was the first complaint of the child concerning the rape. The record further reveals that it was made at a time when the child was extremely upset and hysterical and at the four-year-old child’s first opportunity to discuss the crime with a person whom she loved and trusted outside the atmosphere of her home where the accused had been living with her mother for several months.

We are satisfied that the report related by Tyra’s grandmother constituted the original complaint of the victim and that it was made at the first reasonable opportunity under the particular facts and circumstances of this case. Accordingly, the trial judge did not err in allowing the child’s grandmother to relate Tyra’s statements concerning the nature of the crime and the identity of the offender.

Assignment of Error No. 4 is without merit.

Defendant contends for the first time in brief that the trial court erred in denying his motion for a new trial, reurging the same errors which we have previously determined to be without merit. Inasmuch as nothing further has been presented for our review, we are unable to find error in the trial judge’s ruling denying defendant’s motion for a new trial.

After defendant was sentenced in this matter, the United States Supreme Court in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976) held unconstitutional Louisiana’s mandatory death sentence for aggravated rape. In accordance with this decision, this court has vacated death sentences in aggravated rape cases but, when no other reversible error has been found, we have remanded the cases to the trial court for resentencing of defendants to the most serious lesser included offense at the time of the commission of the crime. State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La.1976). In the instant case, the crime was committed on April 14, 1974. The next lesser included offense at that time was simple rape carrying a maximum penalty of twenty years. Accordingly, even though we affirm the conviction, we vacate and set aside the imposition of the death penalty and remand the case to the trial court for resentencing.

DECREE

For the reasons assigned, the conviction is affirmed and the case is remanded for resentencing of the defendant.

      . Assignments of Error Nos. 1, 5 and 6 have neither been briefed nor argued to this court. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Frankie L. KINCHEN et al.
    No. 58478.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Gerard E. Kiefer, Forrest, Kiefer & Ba-cot, Baton Rouge, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Livingston Parish Grand Jury indicted Frankie L. Kinchen, Frederick J. Man-chack, III, and Paul J. Starkey with the following: possession of marijuana in violation of LSA-R.S. 40:966(C); possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A)(1); and resisting arrest in violation of LSA-R.S. 14:108. The court consolidated the trial of all three charges. Defendants waived trial by jury. At the conclusion of the trial, the judge found defendants guilty of attempted possession of marijuana and attempted possession of cocaine. Defendants Manchack and Starkey were also found guilty of resisting arrest, while the judge found Kinchen not guilty of that charge.

The judge sentenced each defendant to serve one year in the parish jail for attempted possession of cocaine, and six months in the parish jail for attempted possession of marijuana. The judge sentenced Starkey and Manchack to serve ninety days in the parish jail for resisting arrest. All sentences were to run concurrently.

Defendants appeal their convictions and sentences, relying upon four assignments of error.

On December 22, 1974, at approximately 9:30 p. m., an automobile collision occurred in Livingston Parish involving an automobile driven by David Abels and an automobile driven by defendant Kinchen in which defendants Manchack and Starkey were passengers. While David Abels was checking to insure that his wife and daughter, his two passengers, were unharmed, he heard what sounded like bottles rattling and observed occupants of the other car go into the wooded area nearby and then return. At this point, defendant Kinchen walked over to talk with Abels. Shortly thereafter several law enforcement officers, including Pat Lee, Abels’ brother-in-law, arrived at the scene. After being issued a citation, defendant Kinchen and his passengers drove away. David Abels and his brother-in-law, searched the wooded area nearby and recovered a bag of vegetable matter. They gave the bag to a deputy sheriff still at the scene. A search for the occupants of the car was launched. Officer Lee remained at the scene to insure that they did not return. Before they were apprehended, officers found another bag of vegetable material and a plastic bag containing a white substance in the woods. Approximately two hours after the accident, the vehicle driven by Kinchen returned and two of the occupants got out and began to walk into the wooded area. Mayor Otis Ratcliff, a special officer at the scene, called for them to halt. The two men ran, got into the car, and Mayor Ratcliff shot out the tires of the vehicle. All three defendants were arrested.

At trial, defendant Kinchen testified that to his knowledge no one had thrown anything into the wooded area on the night of the auto collision. He stated that they had returned to the scene to look for a cigarette lighter that had been lost by Manchack. He testified that only Starkey had gotten out of the vehicle and that when they saw a car approaching he got back in to avoid an accident. Kinchen testified that as they started off their tires were shot.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1 defendants complain that the trial court erred in denying their motion to dismiss. After the State’s opening statement they argued that the State failed to explain the nature of the charge and the evidence by which it expected to prove the charge. Specifically, they maintained that the State failed to prove that the area in which the contraband was found was under their control.

The State’s opening statement did set forth in some detail the factual context of the charge in compliance with LSA-C. Cr.P. Art. 766. It is well settled that the State need not give in minute detail all evidence by which it intends to prove its case. LSA-C.Cr.P. Art. 769; State v. Sneed, La., 316 So.2d 372 (1975); State v. Roquemore, La., 292 So.2d 204 (1974); State v. Himel, 260 La. 949, 257 So.2d 670 (1972).

The scope of the opening statement is left to the sound discretion of the trial judge. State v. Bolen, La., 338 So.2d 97 (1976); State v. Clark, 231 La. 807, 93 So.2d 13 (1957). We find no abuse of discretion.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2 defendants complain that the trial court erred in overruling their objection to the qualification of Irvin Johnson, Jr., as an expert in the field of controlled dangerous substances.

At trial, Irvin Johnson, Jr., a criminologist with the Louisiana State Police Laboratory, was qualified as an expert in controlled dangerous substances. He testified that he earned a B. S. in chemistry and physics from LSU; that he worked for the Louisiana State Police Crime Laboratory for five years; that he worked in private industry for nineteen years, including several chemical companies; that he conducted over one thousand tests in order to determine whether a substance was a controlled dangerous drug; that he qualified as an expert approximately forty times in various courts; that he received training at the State Police Crime Laboratory in connection with drugs testing; that he belongs to the Louisiana Association of Scientists and attends their meetings where various tests are presented.

Defendant contends that until it is established that Johnson has laboratory knowledge of marijuana and cocaine, he was improperly accepted as an expert in that area.

LSA-R.S. 15:466 establishes the test of an expert’s competency as his knowledge of the subject matter about which he is to testify. In determining competency, the trial judge is vested with broad discretion. This Court will not disturb that determination absent a clear showing of an abuse of that discretion. State v. Owens, La., 338 So.2d 645 (1976); State v. Roach, La., 338 So.2d 621 (1976); State v. Traylor, La., 311 So.2d 847 (1975).

T’be trial court’s determination that Johnson was an expert in the field of analysis and identification of controlled dangerous substances is supported by the evidence. There is no showing of an abuse of discretion.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

In Assignment of Error No. 3 defendants complain that the trial court erred in admitting over their objection three plastic bags containing cocaine and marijuana (S-l), the evidence envelope into which these drugs were originally placed (S-2), and the envelope into which the drugs were placed subsequent to analysis by the Louisiana State Crime Laboratory (S-4).

Initially, we note that defendants failed to object to the introduction of State’s exhibits 2 and 4 at the time they were offered into evidence. This failure operates as a waiver of any complaint. LSA-C.Cr.P. Art. 841.

The defendant objected to the introduction of the three plastic bags containing the cocaine and marijuana, arguing that the chain of custody was incomplete.

At trial,' David Abels testified that he found two plastic bags containing vegetable material and that he gave them to Deputy Delatte. Officer Lee testified that he found a plastic bag with white powder, with a plastic bag wrapped in a piece of paper towel, and that he also gave the bag to Deputy Delatte. Both witnesses indicated that the objects shown to them at trial were similar to those found on the night in question. Deputy Delatte testified that he had been given the plastic bags in question at the scene of the auto collision; that he tagged the items in question with the date and where it was found, signed it, and then turned the substance over to Trooper Rawls. The deputy identified the tag on the bag as the one which he had signed on the night in question. Trooper Rawls testified that he received the bags from Deputy Delatte and took them to Paul Cobb at the Louisiana State Crime Laboratory. Rawls identified S-2 as the envelope in which the evidence was placed when it was submitted to the crime lab and identified his signature. Paul Cobb, the Director of the Louisiana State Crime Laboratory, testified that he received the evidence envelope containing three plastic bags from Trooper Rawls and that he gave him a receipt. He identified the receipt at trial (S-3) as well as the envelope which originally contained the evidence (S-2). He stated that the evidence envelope was placed in the security of the laboratory by the evidence clerk. At that point, State’s exhibits 2 and 3 were introduced and filed into evidence without objection. Then Irvin Johnson, Jr., testified that he tested the substances and returned them to the evidence clerk, placing it in an envelope (S-4). The State Police identification numbers on the various items were identical. When the State sought to introduce S-l, the cocaine and the marijuana, defendants objected, arguing that the chain of custody was not complete since the evidence clerk did not testify and because the paper towel the cocaine was apparently wrapped in when found was not available.

This Court has repeatedly held that in order to be introduced at trial, the State must show that the evidence is reasonably connected with the defendants or the crime and have some relevancy which the court considers sufficient to warrant their introduction. State v. Batiste, La., 318 So.2d 27 (1975); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

The evidence must be identified. The identification can be visual by testimony at trial that the object exhibited is the one related to the case. The identification can also be by chain of custody from the time it was seized to the time it is offered into evidence. State v. Batiste, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

It is not required that the evidence as to custody eliminate all possibility .that the object was altered. For admission, it suffices that the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of evidence is sufficient. State v. Batiste, supra; State v. Freeman, La., 306 So.2d 703 (1975); State v. Flood, La., 301 So.2d 637 (1974).

In the instant case, the evidence adequately establishes that it is more probable than not that the marijuana and cocaine introduced at trial were connected with the defendants and the case. The lack of positive evidence goes to the weight of the evidence, rather than to its admissibility. State v. Batiste, supra.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4 defendants complain that the trial court erred in denying their motion for judgment of acquittal. Basically, they argue that the State failed to prove that they attempted to knowingly possess the controlled dangerous substances.

LSA-C.Cr.P. Art. 778, dealing with motions for acquittal, provides in pertinent part:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.”

In State v. Douglas, La., 278 So.2d 485 (1973), this Court held that in reviewing a motion for acquittal, this Court will reverse the conviction only when there is no evidence of the crime or an element of the crime. If the only issue is the sufficiency of the evidence to prove guilt beyond a reasonable doubt, this Court cannot review the determination of the trier of fact. In criminal cases, this Court has jurisdiction to review only questions of law. State v. Evans, La., 317 So.2d 168 (1975); State v. Watson, La., 301 So.2d 653 (1974); State v. Occhipinti, La., 296 So.2d 283 (1974).

In the present case defendants were convicted of attempted possession of marijuana and attempted possession of cocaine. LSA-R.S. 40:966(C) provides in pertinent part:

“It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I (wherein marijuana is listed) unless such substance was obtained, directly, or pursuant to a valid prescription or order from a practitioner . . . ”

LSA-R.S. 40:967(C) provides in pertinent part:

“It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II (wherein cocaine is listed) unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner . . . ”

The record reflects that at the time of the automobile accident, David Abels observed several occupants of the car go into the wooded area nearby and then return. Shortly thereafter two bags of marijuana and one bag of cocaine were discovered in the wooded area. Defendants left, then returned to the scene, and went fifteen or twenty feet from the car toward the wooded area where the marijuana and cocaine were found. When told to halt, they ran to their car and attempted to drive away. The officers apprehended them by shooting the automobile tires.

The record, therefore, contains some evidence that defendants attempted to knowingly or intentionally possess both cocaine and marijuana.

LSA-R.S. 40:966(D)(1) provides the appropriate sentence for a first conviction of possession of marijuana as a fine of not more than five hundred dollars and/or imprisonment in the parish jail for not more than six months. LSA-R.S. 14:27(D)(3) provides that a fine or imprisonment for an attempt to possess marijuana shall not exceed one-half the largest fine or one-half the longest term of imprisonment prescribed for the offense so attempted or both. The court sentenced defendants to six months in the parish jail for their conviction of attempted possession of marijuana, exceeding the statutory limit.

For the reasons assigned, defendants’ convictions and sentences for attempted possession of cocaine and resisting arrest are affirmed. Their convictions for attempted possession of marijuana are also affirmed, but their sentences for this offense are annulled and set aside. The case is remanded to the lower court for resen-tencing according to law and the views herein expressed.

      . The record does not reflect that any of the defendants have previous marijuana convictions. Therefore, this conviction for attempted possession of marijuana is punishable as a first offense.