author: SANDERS, Chief Justice. CALOGERO, Justice, BLANCHE, Justice. TATE, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Aubrey Joseph LECOMPTE.
    No. 62117.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    On Rehearing May 21, 1979.

      Willis & Hardy, Paul J. deMahy, St. Mar-tinville, for defendant-appellant.
    William A. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., George W. McHugh, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Aubrey Joseph Leeompte, with four counts of attempted forcible rape, violations of LSA-R.S. 14:27 and 14:43.1. A jury returned guilty verdicts. The court sentenced him to five-year terms of imprisonment on each count, to run consecutively.

The defendant appeals, relying on eleven assignments of error for reversal of his convictions and sentences.

We adduce the following context facts:

While on Interstate-10, the defendant motioned to women driving alone that something was wrong with their right rear tires. Upon stopping, the defendant offered to tighten the lugs on the wheels but stated that he could only do it safely at the next exit. They left the Interstate at the Butte LaRose exit. In three instances, the defendant escorted the women to a nearby shell yard, and in the other instance, he followed the victim until she pulled off the exit road. After tightening the lugs, he attempted to forcibly rape each woman.

These offenses occurred over a two-month period.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Prior to and during trial, the defendant filed motions to quash and sever the four counts of attempted forcible rape. The court denied them.

In challenging these rulings, the defendant asserts that the joinder prevented the jury from giving a fair determination of his guilt or innocence on each offense. He contends that trial on the four counts confused the jury because each count had a separate victim, time and date, because there was an alibi for three counts, and because the State presented the evidence in a different order than the counts appear in the Bill of Information. He supports this contention by pointing to the fact that the jury asked the court for the specific time each offense occurred.

When the State charges the defendant in the same Bill of Information with two or more offenses pursuant to Louisiana Code of Criminal Procedure Article 493, he may apply for a severance of offenses under Louisiana Code of Criminal Procedure Article 495.1, which provides:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
“(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
“(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

In State v. Mitchell, La., 356 So.2d 974 (1978), we set forth the guidelines for severance, as follows:

“Two critical questions must be determined by the trial judge presented with a motion for severance of offenses. First, he must decide ‘whether, in view of the number of offenses charged and the complexity of the evidence ... offered, the trier of fact [could] distinguish the evidence and apply the law intelligently as to each offense.’ La.Code Crim.P. art. 495.1; State v. Holstead, 354 So.2d 493 (La.1977); State v. Proctor, 354 So.2d 488 (La.1977). A second question to be decided is whether the offenses joined because they are of the ‘same or similar character’ under La.Code Crim.P. art. 493 (as opposed to ‘same transaction’ or ‘common plan’ joinder) are admissible as similar acts under La.R.S. 15:445 and 446. State v. Holstead, supra; State v. Carter, 352 So.2d 607 (La.1977).
“In relation to the first question, in deciding whether the complexity of the evidence warrants severance of the offenses, an appellate court evaluating the trial judge’s denial of defendant’s motion will examine the case for various problems:
“Some of the dangers inherent in a multiple offense joinder situation are that the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him.
“State v. Proctor, supra. Also cited in State v. Holstead, supra.
U * * *
“We next consider whether the offenses joined under La.Code Crim.P. art. 493 because they are of the ‘same or similar character’ are admissible as similar acts under La.R.S. 15:445 and 446. State v. Holstead, supra; State v. Carter, supra. In order to be admissible under this exception, the other crimes must first be so distinctively similar as to preponderantly demonstrate that their perpetrator must be the same person. State v. Jackson, 352 So.2d 195 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976); State v. Waddles, 336 So.2d 810 (La.1976). The proof of the other crimes must also be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Jackson, supra; State v. Frederick, 340 So.2d 1353 (La.1976). Finally, the probative value of the evidence of the other crime must outweigh its prejudicial effect. State v. Jackson, supra; State v. Ledet, 345 So.2d 474 (La.1977); State v. Moore, 278 So.2d 781 (La.1973) (on rehearing).” [Footnote deleted.]

This Court concludes that the trial judge properly denied the motions to quash and sever. Severance was neither appropriate nor necessary “to promote a fair determination of the defendant’s guilt or innocence of each offense.” LSA-C.Cr.P. Art. 495.1. Under the circumstances here, we think the jury could distinguish the evidence and apply the law intelligently as to each offense. Several factors bolster our conclusion: the relatively small number of offenses joined and the uncomplicated nature of the offenses did not handicap the defendant in his defense; each offense was for the same crime committed in the same manner; there was no confusion in the application of the law because the law was the same for each offense; the statutes violated have few elements; the State presented its evidence in a compartmentalized, logical, and understandable manner; the State’s evidence consisted primarily of the victims’ testimony which was simple and largely identical in nature; and the court’s instructions clearly explained the jury’s duty to determine the defendant’s guilt or innocence on each offense. Most importantly, the court gave the jurors a list of each charge, the victim, and the date of the offenses to aid in their deliberations.

The jury initially returned two verdicts of not guilty and two verdicts of guilty. One of the not guilty verdicts was improper because it was not the verdict of ten jurors. See LSA-C.Cr.P. Art. 782. The judge instructed them that ten must concur in each verdict and ordered them to deliberate further. Thereafter, they returned four guilty verdicts. The fact that the jurors initially rendered different verdicts for each count indicates that they separated the evidence and law for each count.

And finally, because the jurors asked for the specific times on each offense, does not indicate that the joinder of offenses confused them. The times were critical for evaluation of the alibis.

Secondly, we find these joined offenses which are of the “same or similar character” admissible as similar acts under LSA-R.S. 15:445 and 446. In the instant case, the forcible rapes occurred over a two-month period and exhibited almost identical modus operandi. The modus operandi is so distinctive that it supports a finding that the crimes were the action of the same person, i. e., they are “signature crimes.”

Evidence of other crimes is relevant to prove a fact of consequence of the defendant’s innocence or guilt. He placed his identity at issue when he presented alibis to three of the charges. The identification of the defendant as the assailant in the offense in which the defense failed to offer an alibi strengthens the identifications in the other three rape charges. In addition, the defense contested the specific intent. He unsuccessfully attempted to introduce expert evidence to prove that he did not have the specific intent to commit any crime and he testified that he did not intend to rape one of the victims. The fact that the defendant inserted his finger into one of the victims vagina strengthens the proof of the defendant’s specific intent to forcibly rape the other three victims. Hence, the evidence of the other offenses was relevant to his identity and intent.

Lastly, the probative value of the evidence of each attempted forcible rape, relating to the proof of identity and intent, clearly outweighs its prejudicial effect.

In conclusion, we hold that the trial court properly denied the motions to quash and sever.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 4, 5, 6, AND 7

The defense alleges that there is no evidence that the victims were prevented from resisting his acts by force or threats of physical violence wherein the victims reasonably believed such resistance would be useless, and that there is no evidence of his specific intent to engage in sexual intercourse without the lawful consent of the victims.

In criminal matters, our appellate-jurisdiction extends to questions of law. La.Const. Art. 5, § 5 (1974). Only when defendant has moved for a new trial, or a directed verdict in a bench trial, based on the allegation that there is no evidence of the crime charged is a question of law presented which this Court can review. State v. Alexander, La., 339 So.2d 818 (1976); State v. Jack, La., 332 So.2d 464 (1976); State v. Jones, La., 303 So.2d 486 (1974). Here the defendant failed to make any such motion. At sentencing held seven days after conviction, counsel moved only for a continuance in order that he have additional time to file a motion for a new trial. The court denied it, and the defendant does not challenge that, ruling.

Assuming arguendo that we have jurisdiction to treat these contentions, we find that there was some evidence of each element of the crimes. The four victims’ testimony alone constituted evidence of the defendant’s force and his specific intent. Moreover, although “intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” LSA-R.S. 15:445.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 8 .

The court qualified defense witness Dr. Lillian Robinson as a medical expert in the field of psychiatry and psychoanalysis. She testified as to the defendant’s mental history. When she stated that he had a “dissociative reaction” to the sudden death of his first wife and the rearing of his three children, the court interrupted and removed the jury. The following occurred:

“BY THE COURT: The State has [previously] raised an objection to the testimony of the psychiatric witness on the grounds that the defendant has entered a plea of not guilty to the crime and not a plea of not guilty and not guilty by reason of insanity. What is the purpose of your testimony, [defense counsel]?
“[DEFENSE COUNSEL]: If Your Honor . please, I did not anticipate the State’s objection on this.
“BY THE COURT: But you should have.
“[DEFENSE COUNSEL]: We did not enter a plea of not guilty and not guilty by reason of insanity for a very special reason. He’s not insane.
H * % *
“[DEFENSE COUNSEL]: We entered a plea of not guilty. Now he is charged with the attempt to commit a forcible rape. The article which defines attempt requires a specific intent. The purpose of the doctor’s testimony is to show that he did not have a specific intent to commit the crime.” Tr. pp. 249-250.

Louisiana Code of Criminal Procedure Article 651 provides in pertinent part:

“When a defendant is tried upon a plea of ‘not guilty’, evidence of insanity or mental defect at the time of the offense shall not be admissible.”

Under this statute, evidence of a mental condition or defect is inadmissible when the defendant failed to plead not guilty and not guilty by reason of insanity. Moreover, a mental defect or disorder short of insanity cannot serve to negate specific intent and reduce the degree of the crime. State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966) and the cases cited therein. See also LSA-R.S. 14:14; LSA-C.Cr.P. Art. 651, Official Revision Comment (a); State v. Berry, La., 324 So.2d 822 (1975). In State v. Jones, La., 359 So.2d 95 (1978), we upheld a trial court’s ruling which precluded counsel from arguing that defendant’s “neurotic, prone-to-hysteria mental condition precluded the specific intent required for murder .” where defense had withdrawn her plea of not guilty by reason of insanity.

Initially, we note that specific intent is an ultimate legal conclusion to be resolved by the fact finders. Because an “expert witness must state the facts upon which his opinion is based,” we can reasonably deduce that the testimony of an expert in psychiatry and psychoanalysis concerning the defendant’s lack of specific intent would necessarily include testimony of a mental defect or condition. See LSA-R.S. 15:465. Stated another way, in order for the physician to testify as to the effect, no specific intent, she would testify as to the cause, mental condition. This is true even when he asserts (for the first time in brief) that the testimony would prove the absence of specific intent as a defense as distinguished from the inability to form specific intent.

We hold, therefore, that Louisiana Code of Criminal Procedure Article 651 precludes admission of an expert’s testimony concerning the absence of specific intent when the defendant’s plea is not guilty.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 11

The defendant challenges the victims’ in-court identifications on the basis that he participated in a line-up without his attorney present despite the fact that he had an attorney.

Louisiana Code of Criminal Procedure Article 841 prevents us from treating this issue for the defendant failed to object to any of the victims’ identifications. Moreover, the record is void of direct evidence concerning the line-up. For example, it fails to reflect the date of the line-up in order that we may decide if the defendant had a right to an attorney. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

This assignment of error is without merit.

We have examined the remaining assignments of error and find them to be insubstantial.

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

DIXON, J., dissents. We cannot constitutionally prohibit introduction of evidence tending to disprove essential intent.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents, disagreeing with the opinion as to the exclusion of evidence relating to intent.

CALOGERO, Justice,

dissenting.

The defendant in the instant case simply entered a plea of not guilty, declining to enter the dual plea (of not guilty and not guilty by reason of insanity) presumably because he did not wish to claim exemption from criminal responsibility on the basis of inability to distinguish right from wrong. Only that demonstrated inability, not diminished responsibility or irresistible impulse, will exempt an offender from criminal responsibility. R.S. 14:14; see State v. Jones, 359 So.2d 95 (La.1978) and State v. Daigle, 344 So.2d 1380 (La.1977). Entry of the dual plea may be viewed as tactically undesirable, since it apprises the jury from the beginning that the defendant alternatively admits the act, but seeks to be excused from the criminal consequences of the act by virtue of his mental condition. See State v. Clark, 305 So.2d 457 (La.1975). A criminal defendant should not be required to enter the dual plea which so disadvantages him, where he makes no claim that he knew not right from wrong, simply to avail himself of the right to disprove an essential element of the crime with which he is charged.

In State v. Willie, 360 So.2d 813 (La.1978) we discussed the United States Supreme Court’s decision in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), which approved a statute requiring a defendant to prove the affirmative defense of “extreme emotional distress”, finding that it comported with due process because the defense did not serve to negative any essential elements of the offense. We recognized that if insanity is an affirmative defense (as “M’Naghten” insanity is under Louisiana law), the state may require the defendant to establish that defense, but could not require a defendant to prove insanity if sanity is an element of the offense, without offending due process. In the instant case the State sought to establish the requisite specific intent by presenting evidence of facts and circumstances from which the jury might infer such intent. R.S. 15:445. In his attempt to present the psychiatrist’s testimony to show that defendant did not have a specific intent to commit forcible rape, the defense merely sought to disprove an element of the crime, not prove a defense, such as (M’Naghten) insanity or intoxication. See Hughes v. Matthews, 576 F.2d 1250 (7th Cir. 1978), wherein evidence of diminished capacity as a defense is distinguished from such evidence tendered to disprove an essential element of the crime, the burden of proof of which indisputably falls to the state.

Our statutory prohibition against introduction of evidence of mental defect in cases where the defendant’s plea is “not guilty” violates a defendant’s due process right to present evidence.

For the foregoing reasons, I respectfully dissent.

On Rehearing

BLANCHE, Justice.

Chief Justice Sanders retired after decision was rendered herein and before the matter was presented to the Court on rehearing. After a rehearing was granted, this writer became a member of the Court and the matter is now submitted to me by an evenly divided Court for decision.

I concur with the opinion as written by Chief Justice Sanders for the majority and take the liberty of expressing these thoughts.

Louisiana has adopted the “M’Naughten rule,” which sets forth the test by which a person can be exonerated from the responsibility of his criminal acts because of a mental deficiency or illness which prevents him from distinguishing between right and wrong. The codification of that rule is found in LSA-R.S. 14:14, and in finding that the rule was not constitutionally offensive, Justice Tate in State v. Berry, 324 So.2d 822 (La.1976), stated:

“Our legislature has by La.R.S. 14:14 expressly adopted the M’Naughten test of insanity. We are cited to no authority by reason of which such adoption is beyond its power or offends constitutional guarantees. Whether wise or unwise, this legislative choice does not admit of judicial substitution of another test allegedly more scientifically based on modern psychiatric knowledge.” (State v. Berry, 324 So.2d at 825)

Also, as noted in the Court’s original opinion, evidence of a mental condition or defect short of insanity cannot serve to negate a specific intent and reduce the degree of the crime. See State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966).

In that case the defense attempted to have the Court accept the theory that a defendant could have a mental disease or mental defect that would not constitute legal insanity but the defendant’s mental condition was such that it prevented him from forming the specific criminal intent to kill or inflict great bodily harm. In rejecting this theory, the Court first cited LSA-R.S. 14:14 and then stated:

“Under this article, a mental defect or disorder short of insanity as thus defined cannot serve to negate specific intent and reduce the degree of the crime. See Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382; Fox v. State, 73 Nev. 241, 316 P.2d 924; Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98; and 22 La.L.Rev. 664. We are aware, of course, that the so-called ‘partial insanity’ doctrine has been adopted in several states. See, e. g., State v. Padilla, 66 N.M. 289, 347 P.2d 312, 78 A.L.R.2d 908. However, we are bound by the codal provision, exempting one from criminal responsibility only if he is capable of distinguishing right from wrong.” (State v. Rideau, 193 So.2d at 271)

Accordingly, by offering evidence of mental illness as vitiating intent as an essential element of the crime, the defendant attempts to come through the back door to prove lack of mental responsibility to commit the offense charged. The real danger in permitting psychiatric evidence of mental or emotional disorders short of insanity to negate intent is to practically destroy the M’Naughten rule and to clutter practically every trial with some sort of expert opinion evidence as to whether the defendant possessed the requisite intent to commit the crime charged.

As intent is an ultimate legal conclusion based on hard evidence produced at trial, it strikes this writer that there is no violation of due process in leaving this finding to the jury unaided by the advice of others.

I concur that the objection was properly sustained by the trial court.

DECREE

Accordingly, on rehearing the convictions and sentences are affirmed.

AFFIRMED.

TATE, J., concurs and assigns reasons.

CALOGERO, J., dissents for reasons assigned in his dissent on original hearing.

DENNIS, J., dissents and assigns reasons.

DIXON, J., dissented.

TATE, Justice,

concurring.

We granted a rehearing primarily to decide whether the doctrine of diminished responsibility should apply in Louisiana, as it does in all but eleven other American states with similar concepts of specific intent and criminal insanity. See State v. Jones, 359 So.2d 95 (La.1978).

In the instant case, the defendant was charged with four counts of attempted forcible rape, a crime requiring specific intent to force the ultimate sexual act upon the victim. Short of that specific intent, the accused may be guilty of battery or of various other crimes, but not of attempted rape. The accused attempted to introduce psychiatric testimony to corroborate his defense that, due to a mental disease or defect, he had no inclination or desire to have sexual intercourse with the victims whom he molested.

In none of the four instances did the defendant attempt to open or remove his trousers. In three of the instances he kissed and fondled the victims and released them, without any attempt at sexual intercourse. In the fourth incident, he had kissed the girl and carried her from her car, but the deputies stopped him before he could manifest further intent.

As we noted in Jones, in the vast majority of American jurisdictions which have adopted the doctrine of diminished responsibility, evidence of a mental condition (although short of legal insanity) is relevant and admissible for the limited purpose of proving that a defendant did not have the requisite specific intent to commit the crime charged. Unlike legal insanity such evidence is not a defense against criminal guilt; it is rather relevant to negate the specific intent and reduce the degree of the crime. This is particularly appropriate in specific-intent crimes, such as murder, where responsive verdicts permit the conduct to be punished by a responsive verdict of guilt of a lesser crime which does not require specific intent.

The writer confesses that he is troubled by the forcefulness of the dissenting views that our court-created rule of evidence, which exclude all evidence of the accused’s mental disease or defect- — however relevant, in fact, it is to whether he had the specific intent required by law to commit the crime — -, arbitrarily deprives him of relevant testimony which might mitigate his degree of criminal guilt, thus unconstitutionally relieving the state of its constitutional burden to prove guilt of every element of the crime beyond a reasonable doubt.

Nor do I find to be intellectually satisfying, however forcefully practical, the easy answers that first come to mind: we have never historically considered this type of evidence relevant (although nearly forty other states do); it would unnecessarily complicate trials in clear cases of guilt through the introduction of frivolous defenses based upon the vagaries of psychiatric diagnoses.

I am of the view that we should reconsider our stubborn adherence to our past rule that, in a trial on the merits, evidence of mental disease or disability is not admissible (however relevant to specific intent), except in a connection with a plea of legal insanity (i. e., the ability to distinguish between right and wrong).

Nevertheless, a majority being unwilling to do so at this time, I will concur under the facts of this particular case in the denial of admissibility to the psychiatric testimony here sought to be introduced, where the effect of the defense, if accepted, is that the accused is not guilty of the crime charged or of any responsive verdict — whereas only legal insanity (not the thrust of this psychiatric testimony) will under our law exempt the accused of criminal responsibility, if (pretermitting the accused’s subjective inclinations of a psychiatric nature) from the objective facts introduced in evidence the jury may reasonably find that the accused (if not legally insane) intended to rape the victims.

DENNIS, Justice,

dissenting.

The rebuttable presumption that the defendant intended the natural and probable consequences of his act, La.R.S. 15:432, coupled with the exclusion of all the psychiatric evidence offered to show his lack of capadty to form the intent necessary for the offense of attempted, forcible rape, in my opinion, unconstitutionally relieved the prosecution of its obligation of proving every essential element of the charged crimes. See, Hughes v. Mathews, 576 F.2d 1250 (7th Cir. 1978); cf. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).


source: Caselaw Access Project

author:
DIXON, Justice.
     DENNIS, Justice, TATE, Justice. SUMMERS, C. J.,

license: Public Domain

text:
    Paul Henry KIDD, in his capacity as attorney for Cheryl Qualls v. Honorable David T. CALDWELL, Judge, Second Judicial District Court, Parish of Jackson.
    No. 63007.
    Supreme Court of Louisiana.
    March 5, 1979.
    Concurrence in Part and Dissent in Part Opinion May 21, 1979.
    On Rehearing May 21, 1979.

      Paul Henry Kidd, Monroe, for plaintiff-relator.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., for defendant-respondent.
   DIXON, Justice.

Cheryl Booker Qualls was indicted by the grand jury of Jackson Parish for aggravated kidnapping, a violation of R.S. 14:44. On the morning of September 7, 1978, the voir dire of prospective jurors for her trial was interrupted when the petit jury venire was exhausted after only ten of the required twelve jurors had been empaneled. ■At this point the defense attorney, Paul Kidd, stated that he had some motions to file and asked that the jury be removed. The trial judge replied that he would not take up any motions at that time and ordered fifty additional names to be drawn from the general venire box. Kidd then insisted that his motion be filed, and the following exchange took place:

“BY MR. KIDD,
Of Counsel for Defendant: Qualls wants this to file. Does this have to go downstairs to be filed? I ask that this be filed. The record will reflect that a Motion to Recuse has been filed and this Court is powerless to act.
BY THE COURT: Mr. Kidd, you will take your seat and remain quiet or we will remove you from the Courtroom.
BY MR. KIDD,
Of Counsel for Defendant: Well, then, that is the perogative [sic] of this Court and I suggest that it do that because I have filed a motion and you have ignored it.
BY THE COURT: I have ordered that the additional jurors be drawn. I will consider the motion at the proper time.
BY MR. KIDD,
Of Counsel for Defendant: The proper time is now. The law requires it and I suggest that the—
BY THE COURT: Court will be in recess and the jury removed.
BY THE SHERIFF: Court is in recess. (The jury is taken from the Courtroom into the jury room.)”

Kidd was then summoned into chambers where further discussion ensued between him and Judge Caldwell. When court was called to order, the judge stated for the record that he found Kidd’s actions highly “contemptible.” In return, Kidd accused the judge of having cursed him in chambers and of saying that the trial would continue regardless of his efforts. After denying the cursing, the trial judge ordered Kidd to be seated and stated his intention of continuing with the jury selection. Kidd’s response was immediate:

“BY MR. KIDD, Well, am I under arrest? I’ve been told that I will be carried foot first—
BY THE COURT: You will remain in the Courtroom until I complete this trial.
BY MR. KIDD,
Of Counsel for Defendant: I want to know if I’m under arrest.
BY THE COURT: You are in contempt of Court. If you try to leave, I will have to place you under arrest, if that’s what you want me to do.
BY MR. KIDD,
Of Counsel for Defendant: I simply want to know if this man has the right to tell me that he is going to bring me into Court feet first.
BY THE COURT: Mr. Kidd, I’m going to ask you once more to take your seat and remain quiet until I complete what I have to say. We will draw the fifty additional jurors; then we will hear your motions. Clerk, proceed to draw.
BY MR. KIDD,
Of Counsel for Defendant: I would also like for the record to reflect that I asked the Court in chambers to look at the law, to review the law; I appeal to the District Attorney who protects all the people of this parish to look at the law and what happens after—
BY THE COURT: Will you remain quiet, Mr. Kidd, while we draw the names?”

After fifty additional names were drawn and ordered subpoenaed, the judge offered to consider the motion. Kidd then stated that under the applicable provisions of the Code of Criminal Procedure, the trial judge sought to be recused could not consider the merits of the motion. Disregarding this argument, the trial judge then overruled the motion on the following grounds:

“BY THE COURT: Article 674, if that concludes your argument and whatever else you intend to present, also provides that the written motion shall be filed prior to commencement of the trial. There is no evidence whatsoever that something has been discovered since the beginning of this trial. Of course, the allegations are completely erroneous regarding this Judge and, due to the tardy filing of the motion, there being nothing shown that this has been discovered since the beginning of the trial, the Court sees no basis whatsoever for the motion. In fact, the Court considers it an effort to delay the trial of this case which has been apparent to the Court from the beginning of the case that there was no desire to expedite the proceedings or to conclude the trial of the case. That’s so far as this Judge is concerned; so the Court, No. 1, finds that the motion was filed too late; No. 2, there is nothing — nothing has been shown that the grounds alleged have been discovered since the beginning of the trial, and, of course, my statement is also to the effect that the allegations in the Motion to Recuse are completely erroneous, and, therefore, your Motion to Re-cuse will be overruled.”

Kidd objected to the court’s ruling on the merits of the motion and also insisted that the facts forming the basis for the motion had been discovered since the commencement of trial. He added that he saw little reason to continue with the trial after the “verbal blasting” he had received during the recess, and suggested that the court “take whatever action it is going to take.” Judge Caldwell responded that he had not cursed Kidd in chambers, and that his intention to continue with the trial was not influenced by the motion to recuse. Then, after characterizing the allegations set forth in the motion as both erroneous and dilatory, the judge recessed the court until 1:00 p. m. the same day.

When Kidd did not return at the designated hour, Judge Caldwell ordered the courthouse searched for him. After the search proved fruitless, the judge ordered a summons to issue, ordering the defense attorney to appear to answer charges of contempt arising from his behavior at the morning session and from his failure to appear in the afternoon, and “to be heard orally in defense or mitigation.” Kidd was ordered to appear at 4:00 p. m., or within two hours of service if he were served at such a time that returning by the designated hour would be impossible.

At 5:40 p. m. the court noted for the record that Kidd had been served at 3:20 p. m. and therefore had been allowed more than two hours to appear. The court then found Kidd guilty of two counts of direct contempt and imposed a $100.00 fine and a twenty-four hour jail sentence for the first count, which encompassed the misconduct at the morning session. Kidd was also sentenced for failing to return to court at 1:00 p. m. to pay a $200.00 fine and incarceration “in the parish jail for a period of ten additional days or until the further orders of this Court.”

Kidd applied to this court for supervisory writs, and on September 8, 1978 an order issued staying the contempt proceedings pending against him. 362 So.2d 583 (La.1978). The motion to recuse was heard by Judge Paul A. Newell pursuant to this court’s order and was denied on September 11, 1978.

The relator now asks that the contempt summons and sentences imposed by Judge Caldwell be set aside. However, his request that we review the ruling denying the motion to recuse is moot, since Cheryl Qualls pleaded guilty to the lesser offense of attempted aggravated kidnapping on September 12, 1978 without reserving the right to review the denial of this motion.

The Code of Criminal Procedure defines contempt as “an act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” C.Cr.P. 20. There are two types of contempt, direct and constructive. Article 21 of the Code of Criminal Procedure sets forth the grounds which constitute a direct contempt of court:

“A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge; or, a contumacious failure to comply with a subpoena, summons or order to appear in court, proof of service of which appears of record; or, a contumacious failure to comply with an order sequestering a witness.
A direct contempt includes, but is not limited to, any of the following acts:
(1) Contumacious failure, after notice, to appear for arraignment or trial on the day fixed therefor;
(2) Contumacious failure to comply with a subpoena, or summons to appear in court, proof of service of which appears of record;
(3) Contumacious violation of an order excluding, separating, or sequestering a witness;
(4) Refusal to take the oath or affirmation as a witness, or refusal of a witness to answer a nonincriminating question when ordered to do so by the court;
(5) Contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority;
(6) Breach of the peace, boisterous conduct, or violent disturbance tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority;
(7) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a motion, plea, brief, or other document, filed with the court, in irrelevant criticism of another attorney or of a judge or officer of the court;
(8) Violation of a rule of the court adopted to maintain order and decorum in the court room; or
(9) Contumacious failure to attend court as a member of a jury venire or to serve as a juror after being accepted as such when proof of service of the subpoena appears of record.”

At the morning session, the relator refused to accept the trial judge’s decision to delay the hearing on the motion to recuse until after the petit jury venire was selected. He refused to proceed until another judge was appointed to hear its merits. His conduct and language were contemptuous of the court’s authority, were disrespectful and disruptive and far exceeded the wide latitude permitted a lawyer in forcefully presenting his client’s cause. These actions constituted a direct contempt. C.Cr.P. 21(5).

The relator defends his actions by arguing that the trial judge was transgressing limits imposed by the legislature on his authority when he delayed in appointing the judge ad hoc and later denied the motion to recuse on its merits. This contention is based on the terms of Article 673 of the Code of Criminal Procedure which provides:

“A judge has full power and authority to act, even though a ground for recusation exists, until he is recused, or a motion for his recusation is filed.”

This article was recently interpreted by this court in State v. Price, 274 So.2d 194 (La.1973), in which guidance was sought from the interpretation given to companion provisions in the Code of Civil Procedure:

“These provisions of the Code of Criminal Procedure are based upon similar provisions in the Code of Civil Procedure, and interpretation of the latter provisions is pertinent here. It has long been recognized in our civil procedure that once a judge is recused, or a motion for his recu-sal has been filed, he has no power to act (except to appoint the proper person to sit ad hoc when the law provides for such an appointment). Any action taken by a recused judge is an absolute nullity. . ” 274 So.2d at 197. (Emphasis added).

Although this statement appears to support the relator’s contention, upon reflection it is evident that the holding in Price is not dispositive of the issue at hand. In Price, the recused judge signed an extension of the return date and the date for filing bills of exception. Later, when this error was noticed after the elapse of the original return date, the judge ad hoc extended the return date. In holding the extension granted by the recused judge to be a nullity, this court followed well established jurisprudence which holds that the judge sought to be recused has a duty to stand aside and to appoint a judge ad hoc to pass upon the validity of the recusation. See State v. Savoy, 207 La. 982, 22 So.2d 402 (1945); State ex rel. Nolan v. Judge of Twenty-Second Judicial District, 39 La.Ann. 994, 3 So. 91 (1887); State ex rel. Tyrrell v. Judge of Fifteenth Judicial District, 33 La. Ann. 1293 (1881). None of these cases held that a motion to recuse rendered the judge incompetent to punish for a subsequent direct contempt of court.

The authority to punish for contempt of court is an inherent power of the court which is conferred not only to aid in the exercise of its jurisdiction and the enforcement of its lawful orders, but also as a means of accomplishing the court’s duty “to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.” C.Cr.P. 17; State ex rel. Collins v. Collins, 237 La. 111, 110 So.2d 545 (1959). For this reason, behavior disrespectful to the court is punishable as a contempt even when the behavior is a reaction to a court order which eventually is determined to be invalid. As was noted in City of Lake Charles v. Bell, 347 So.2d 494 (La.1977):

“ . . . The correctness of a court order or ruling is not contested by deciding to willfully disobey it, without suffering the consequences of that disobedience. Respect for judicial process is a small price for the civilizing hand of law. Absent a showing of transparent invalidity or patent frivolity surrounding the order, it must be obeyed until stayed or reversed by orderly review. . . . ” 347 So.2d at 496.

The record indicates that the relator had a valid argument that the trial judge was in error to continue with the selection of the petit jury venire after the motion was filed and was acting beyond his authority in passing on the merits of the motion. Nevertheless, the relator’s proper course was to object to the actions taken by the judge and to apply to this court for supervisory writs. By choosing to ignore his legal recourse, the relator interfered with the orderly administration of justice and denigrated the dignity of the court.

We hold that the provisions of C.Cr.P. 673, limiting the power of a judge to act after a motion for his recusation is filed, do not affect the inherent power of a judge to control the conduct of those in his courtroom while court is in session.

The second count of contempt arose from the relator’s failure to return to court at 1:00 p. m. to continue with the trial, and not from his failure to appear in response to the summons. The failure of an attorney to return to court after recess has been ordered is not specifically mentioned among the grounds for a finding of direct contempt enumerated in Article 21. Nevertheless, under the facts of this case, it is clear that the defense attorney’s failure to return constituted a direct contempt of court. Kidd’s flight to Monroe left the trial of an important case in suspense for the rest of the day. Selection of the final two jurors for Qualls’ trial was interrupted, with the result that those members of the petit jury venire who would not have served in this ease were unduly inconvenienced. Since this was a capital case, the jurors had to be sequestered when the relator failed to return at 1:00 p. m. The judge was unable to tell prospective jurors when to return to court because it was unclear when Kidd would return, if ever. Such action clearly comes within the prohibition against “contumacious . . . behavior tending to interrupt or interfere with the business of the court,” C.Cr.P. 21(5), and therefore is properly punishable as a direct contempt of court.

Kidd did not apply to the trial court for a stay of proceedings in order to seek relief in this court, nor did he apply to this court for relief, until the next day.

A person who commits a direct contempt may be found guilty and punished without trial. C.Cr.P. 22. The argument has been raised that due process is denied an attorney who is found guilty of direct contempt merely because he failed to attend court at a designated hour, if he is given no opportunity to explain his absence. However, it is noteworthy that Article 22 envisions a confrontation between the judge and the party he has held in contempt, at which time the party may offer a defense or advance mitigating circumstances. This was the purpose of the summons issued to Kidd ordering him to appear before the court to answer to the contempt charges against him.

Kidd’s failure to return to court after the noon recess was a clear abandonment of the judicial process; he resorted, not to the law, but to self-help. The lawyer decided the judge was wrong and stopped the trial. The remedies afforded Kidd and his client were not invoked. When questioned on oral argument about the reason he did not invoke the supervisory jurisdiction of this court, Kidd’s only answer was that he had not been too successful in his other, earlier, efforts to obtain relief in this court. What the lawyer did, then, was to abandon the system, not to test it. He simply revolted against the judicial system and the rule of law because he thought the judge was wrong. His rebellious failure to return was contumacious behavior which not only interrupted the business of the court, but brought it to a halt, in violation of C.Cr.P. 21(5).

The stay order previously issued is set aside, and the convictions of Paul Henry Kidd and sentences for contempt are affirmed.

DENNIS, J., concurs in part and dissents in part, with reasons.

DENNIS, Justice,

concurring in part and dissenting in part.

I respectfully disagree with the original opinion’s holding that Kidd’s conduct forming the basis of the second count of contempt “comes within the prohibition against ‘contumacious . . . behavior . tending to interrupt or interfere with the business of the court,’ C.Cr.P. 21(5), and therefore is properly punishable as a direct contempt of court.”

In my opinion the conduct described by article 21(5) is clearly limited to behavior toward the judge or an attorney or court officer while in open court.

I concur in the holding of the original opinion with respect to the first count of contempt.

On Rehearing

TATE, Justice.

The facts are fully set forth in our opinion on original hearing.

We granted rehearing primarily to consider whether Kidd’s decision to absent himself from court after the recess was a direct contempt within the meaning of La.C.Cr.P. art. 21, thus, summarily punishable under La.C.Cr.P. art. 22.

I. The First Count of Contempt

At the outset, we note that the conviction and sentence for the first act of contempt were proper, for the reasons stated in our original opinion. Kidd’s contumacious behavior occurred in open court, and the judge notified him that he was in contempt of court. Thus his behavior was a direct contempt, defined in article 21 as “one committed in the immediate view and presence of the court and of which it has personal knowledge,” and was summarily punishable under article 22.

It was also within the judge’s discretion to reserve sentencing for a later time rather than imposing sentence simultaneously with the citation for contempt. See Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952).

As we held on original hearing, Kidd actually received a summons to appear in court for a hearing which would have afforded him the opportunity to present his defense and mitigation as required by article 22. We therefore confirm the conviction and sentence on the first count.

II. The Second Count of Contempt: Direct or Constructive?

We hold, however, that the second count of contempt was not a direct contempt and that it should have been tried as a constructive contempt on a rule to show cause as provided by La.C.Cr.P. art. 24. (A direct contempt, distinguishably, is punishable summarily and without trial, except to afford the contemnor the opportunity to be heard orally by way of defense or mitigation. Article 22.)

An attorney’s failure to appear in court after a recess is not one of the acts mentioned in the list of direct contempts contained in article 21. Although this *s an illustrative rather than an exclusive listing, this direct-contempt article does expressly include the following acts:

“(1) Contumacious failure, after notice, to appear for arraignment or trial on the day fixed therefor;
“(2) Contumacious failure to comply with a subpoena or summons to appear in court, proof of service of which appears of record . . ”

These explicit inclusions in the illustrative listing tend to exclude certain other acts by implication. For instance, the witness who failed to comply with a subpoena or summons, proof of service of which did not appear of record, would be in a strong position to argue that the legislature intended to exclude this act from the category of direct contempts.

Likewise, inclusion of the above-quoted provisions that seem intended to apply to witnesses and defendants rather than counsel, as well as article 21(9) (making it a direct contempt for a member of a jury to fail to attend court), together with the special penalty provisions for attorneys contained in article 25 (see Part III of this opinion), tend to exclude (as a direct contempt) by implication an attorney’s failure to appear in court after a recess.

We further note that, in this ease, the court order that the attorney defied was not one of which proof of service appeared in the record.

Moreover, the list of constructive con-tempts in article 23 includes among others the following acts:

“(1) Willful neglect or violation of duty by a clerk, sheriff, or other person elected, appointed or employed to assist the court in the administration of justice;
“(2) Wilful disobedience of any lawful judgment, order, mandate, writ or process of court . . .” (Italics ours.)

Thus, a violation of an “order” or “mandate” of the court, proof of service of which did not appear in the record, by an attorney — a person employed to assist the court in the administration of justice — is clearly contemplated as a constructive contempt. This inclusion as a constructive contempt gives added weight to its implied exclusion as a direct contempt in the illustrative listing of the latter.

In accordance with the general rule of strict construction of criminal statutes, see, e. g., La.R.S. 14:3, it has been suggested that where an act might be regarded as either a direct or a constructive contempt, the doubt should be resolved in favor of the latter. In re Holmes, 355 So.2d 677, 678 (Miss.1978); Fisher v. State, 248 So.2d 479 (Fla.1971).

The principal effect of finding that the present conduct was a constructive rather than a direct contempt is that it cannot be tried summarily.

La.C.Cr.P. art. 24 provides that a person cited for constructive contempt shall be tried by the judge on a rule to show cause that expressly alleges the facts constituting the contempt. A certified copy of the motion and of the rule to show cause must be served on defendant, and he must be allowed forty-eight hours to secure counsel and prepare his defense. These procedural safeguards are thought not necessary where all the facts constituting a direct contempt, (including evidence of the contemnor’s intention and usually of any mitigating circumstances), are within the knowledge of the court because all the facts constituting the contempt have taken place in view of the court.

The case of the absence of an attorney, where the intention might be other than contumacious and where a wide range of defenses involving out-of-court circumstances might be presented, is much more susceptible of the article 24 constructive-contempt procedure than of the summary direct-contempt procedure. We note that the constructive-contempt procedure is itself speedier and less cumbersome than an ordinary trial of a criminal offense, but it does provide due process safeguards which are necessary in the adjudication of an offense more complicated than simple aggressive or obnoxious behavior in open court.

The overwhelming majority of cases in other jurisdictions that have considered the question have held that the absence of an attorney, without more, is a constructive rather than a direct contempt. See, e. g., Taylor v. District Court, 434 P.2d 679 (Alaska 1967); Fisher v. State, 248 So.2d 479 (Fla.1971); Peltier v. Peltier, 388 A.2d 22 (R.I.1978) and authorities cited therein at 23; State ex rel. Wendt v. Journey, 492 S.W.2d 861 (Mo.App.1973); Annotation, 97 A.L.R.2d 431, 459-64 (1964) and authorities cited therein.

The few cases to the contrary have generally relied on the legal fiction that where an attorney’s actions disrupt court proceedings he is “present” in court for that purpose. See, e. g., Rosenstock v. Municipal Court, 61 Cal.App.3d 1, 132 Cal.Rptr. 59 (1976): Annotation, 97 A.L.R.2d 431, 457-69 (1964). This fiction is unavailable to us, not only because of the principle of strict construction of criminal statutes, but also because the Louisiana direct contempt provision, article 21, requires that an act “of which [the judge] has personal knowledge” must also be “committed in the immediate view and presence of the court” in order to be a direct contempt. The fact that the absence and resulting disruption are immediately apparent to the court fulfills only one of the two prongs of the test (immediate view and in the presence of the court) for this type of direct contempt, under the Louisiana statutory definition.

Accordingly, we must set aside the conviction on the second contempt, and remand this contempt proceeding to the district court for further proceedings consistent with the views expressed in this opinion.

III. Trial Before Another Judge

Finally, we hold that under the facts of this case, the trial of the second count of contempt should be before a judge other than the one toward whom the contumacious behavior was directed.

In Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), the United States Supreme Court held that where contemptuous conduct is of the sort likely to provoke a trial judge and embroil him in personal controversy with the defendant, and where summary punishment procedures are not used, the contempt trial should preferably be heard by another judge. Not only the possibility of actual bias on the part of the trial judge, but also the possibility of the appearance of bias, should be taken into account.

In the instant case, the portions of the transcript quoted in our original opinion do reflect some hostility between the attorney and the trial judge. The judge was provoked by Kidd’s contumacious conduct into threatening to arrest Kidd if he should leave, and into saying not only that Kidd was in contempt, but alsp that his actions were “highly contemptible.”

These circumstances might not by themselves have required application of the Taylor v. Hayes rule. However, subsequent to the conduct, the judge’s strong feelings on this matter had been demonstrated by his issuance of an ex parte warrant of arrest for Kidd before our original affirmance of the contempt convictions was final, and by his letter to this court following our original opinion in which he expressed his desire to resolve the matter quickly and requested this court to determine the defendant’s application for a rehearing at an expedited conference.

Balancing the strong feelings generated by this matter and the possibility of the appearance of bias, against the need for prompt action to preserve courtroom decorum, we cannot say that the trial judge abused his discretion in not recusing himself from the summary trial of Kidd’s direct (first) contempt on the day it occurred. However, since our holding that the second act should be tried as a constructive contempt will necessitate a new hearing on this count, and since the factor of preserving courtroom decorum is no longer present, the spirit of Taylor indicates that it would be better for the appearance of justice for another judge to try the second count of contempt.

Conclusion

Kidd’s failure to appear in court after the recess was improperly tried under the summary procedure provided for direct con-tempts. In any case, the enhanced penalty provision should not have been used. The second count should be retried as a constructive contempt before a judge other than the one against whom the contumacious behavior was directed.

Decree

The sentence and conviction on the first count are affirmed. The sentence and conviction on the second count are set aside, and the case is remanded for a new trial in accordance with the provisions of La.C.Cr.P. art. 24 before a judge other than the respondent.

SENTENCE ON FIRST CONTEMPT ADJUDICATION AFFIRMED; SENTENCE ON SECOND CONTEMPT ADJUDICATION SET ASIDE, AND CASE REMANDED FOR FURTHER PROCEEDINGS.

SUMMERS, C. J.,

is of the opinion that the affirmance of the first count of contempt is correct; however, I dissent from the remaining statements of this opinion on rehearing, being of the opinion that the original is correct.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Joe W. Sanders, Retired.

      . In State v. Hayes, 199 La. 549, 6 So.2d 657 (1942), a motion to recuse was filed but was denied by the trial judge on the ground that it failed to disclose facts from which a conclusion of interest on the judge’s part could be drawn. Subsequently, the trial judge caused a rule to issue requiring the defendant and his attorney to show cause why they should not be held in contempt for filing a “scurrilous, libelous and vicious” motion (the motion to recuse). After holding that the judge erred in failing to refer the motion to another judge for a hearing, this court noted that the question of contempt “ . can only properly come up for consideration if and when the contempt proceedings are sought to be enforced against the rela-tors after the hearing is had on the motion for recusation.” 199 La. at 555, 6 So.2d at 659. The apparent reason for relegating the contempt hearing to a time after the hearing on the motion to recuse was that “ . . . the allegations, if true, would not be punishable for contempt, however derogatory in nature. . . ” 199 La. at 555, 6 So.2d at 659.

      . In the Bell case the defendant was scheduled to be tried at 2:00 p. m. In the morning defendant’s lawyer filed a petition in the federal court to remove the case, which gave the United States District Court exclusive jurisdiction over the case. Defendant’s lawyer appeared at the appointed time in the city court but could not convince the city judge that he lacked jurisdiction. For his effort, the lawyer was held in contempt by the city judge. We reversed.

      . In State v. Jones, 346 So.2d 708 (La.1977), a writ was granted reversing and setting aside a judgment of direct contempt on the ground that the record did not support such a finding merely because the applicant had not appeared in court at the appointed time. However, the facts of the Jones case are clearly distinguishable from those of the case before us. Jones pleaded guilty to receiving stolen things and was sentenced to two years in prison. His attorney requested that execution of the sentence be delayed slightly so that Jones could complete some personal affairs. The trial judge agreed and ordered the defendant to appear in court by 5:00 p. m.; when he failed to do so, he was adjudged in direct contempt of court. This ruling was reversed because Jones’ actions, although certainly contemptuous, did not interrupt or interfere with the business of the court. No proceedings were held in abeyance; no jurors were left sequestered; the court’s docket was not thrown into confusion. The only effect of Jones’ failure to appear was that he was not surrendered to penal authorities before the judge but had to be arrested on the following day.

      . As there stated, 72 S.Ct. 456:
      “ *' * * If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.
      “We hold that if [the trial judge] believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.”

      . Although under the penalty provisions of La. C.Cr.P. art. 25 Kidd could be sentenced to a maximum of six months imprisonment and a five hundred dollar fine for a constructive contempt (the lower penalties for attorneys only applying to direct contempts), we note that under the due process principle of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) he may not be punished by a heavier sentence because of the successful exercise of review rights and therefore may be sentenced on retrial to no more than the ten days and two hundred dollars originally imposed on the second count.


author: SUMMERS, Chief Justice.

text:
    Jackie Ray KING et al. v. PEOPLES BANK AND TRUST COMPANY et al. PEOPLES BANK AND TRUST COMPANY v. Julius D. GILL.
    No. 63202.
    Supreme Court of Louisiana.
    April 9, 1979.

      Donald R. Miller, Shreveport, for plaintiffs-applicants.
    Edwin L. Blewer, Jr., Cook, Clark, Egan, Yancey & King, Shreveport, for Sheriff Harold M. Terry, respondent.
    David M. Touchstone, Shreveport, for defendants-respondents.
   SUMMERS, Chief Justice.

An understanding of the issues presented for decision in this case requires a review of the somewhat complex chronology of events giving rise to this litigation. Jackie Ray King and Cecile Ford King are husband and wife. On April 13, 1973 they acquired a lot in North Park Estates, a subdivision in Cad-do Parish. By late fall, in 1977, they had decided to build a house on the lot. In keeping with this decision they caused plans and specifications to be drawn, and made inquiries about a contractor; in that connection a neighbor suggested they get in touch with Julius Gill.

Gill was contacted, and an agreement was reached whereby Gill would build the King house. Gill had done business with the Morehouse Branch of the Peoples Bank and Trust Company since the spring of that year, and he recommended that the Kings approach the bank about interim financing.

On November 29, 1977 the Kings and Gill entered into a contract for the construction of the house. The contract was drawn by Gill and specified a price of $67,200. Although the record does not clearly reveal whether the contract preceded or followed the visit to the bank, about that time Mrs. King visited the Morehouse Branch of the Peoples Bank and Trust Company and spoke with O. C. Albritton, the Branch Manager, about interim financing for the house construction. She testified that Al-britton told her it would be necessary for the Kings to deed the lot to Gill against a counter letter in order for financing to be arranged.

During this conversation, according to Mrs. King, Albritton told her that it would be necessary for the Kings to obtain a “take-out letter” from the permanent financing institution, guaranteeing the bank that interim financing would be terminated upon completion of the house. J. E. Col-lum, president of the bank, testified that such a letter, dated November 21, 1977, was received from Postal Employees’ Credit Union, guaranteeing permanent financing in the amount of $45,000. He further testified that the bank would not, in this or any other instance, have agreed to undertake interim financing without such a guarantee. Although the take-out letter formed a regular feature of the bank’s interim financing arrangements for construction, it was immaterial to the bank whether such permanent financing was arranged by or for the builder or by or for the ultimate owners; the bank merely wished to be assured that the interim financing arrangements would be closed out when construction was completed.

Sometime prior to December 8, 1977 Al-britton called the offices of Hal V. Lyons, an attorney and notary in that parish. Al-britton spoke with Lyon’s wife and secretary, instructing her to have a loan package drawn to permit interim financing for Gill to construct a house on the King lot. He also instructed her to have the title checked on the King lot. The bank knew the purpose of the transaction was to arrange for the Kings’ house to be built by Gill and so notified Lyons.

Lyons had handled a large number of transactions for the bank and in this transaction acted for the bank. He did not represent the Kings. He had, however, later in the course of events, handled some of Gill’s disputes with his creditors, services for which either Gill or the Bank paid.

The loan package consisted of a deed in authentic form from the Kings to Gill, prepared upon the instructions of the bank. This recited the payment by Gill, and the receipt by the Kings of $5,375, as consideration for the sale, which, however, was never paid.

The second part of the loan package was a mortgage in authentic form for $35,000 executed by Gill in favor of the bank.

The third part of the package was a counter letter from Gill to the Kings, acknowledging that the deed transferring the King lot to him was “to allow me to obtain the necessary interim financing to construct you a residence.” The letter further acknowledged that the Kings were “the true owners of said property” and Gill set forth that he would “reconvey same to you at the time of the closing of the permanent financing loan, or any other time you request.” Although the counter letter was not referred to in the bank’s instructions to the attorney Lyons, the Branch Manager knew of it. The President of the bank later testified that the use of a counter letter in such a situation was new to him, but Lyons testified it was his usual practice and the general practice in the area.

The fourth part of the loan package was an engineering certificate. This is not material to any point in dispute and will not be discussed further.

On December 8, 1977, the Kings, Gill and Albritton went to Lyons’ office, although it is not clear how long Albritton remained. All three items in the loan package, the deed, the mortgage and the counter letter, were executed. Lyons was the notary on these transactions and later recorded the mortgage and deed; he retained the original of the counter letter, did not record it, and later gave it to Mrs. King upon her request. It is not clear why the counter letter was not delivered at the time; Lyons himself indicated it was a mere oversight. He pointed out, however, that had the counter letter been recorded the function of the transfer and mortgage, to give the bank priority over liens and privileges arising from the construction, would have been frustrated. The purpose of the counter letter, he said, was, rather, to protect the Kings in the event Gill died and his succession attempted to collate the property in question.

The Kings testified in this regard that both Albritton, at the conference in late November, and Lyons, at the execution of the instruments, assured them that the effect of the counter letter was fully to protect their interest and that they had nothing about which to be concerned.

To complete his financing of the construction, Gill gave the bank a hand note covering his initial draw against the $35,-000, the note being secured by the pledge of the mortgage and mortgage note bearing against the lot. Also, the bank asked for and received a pledge of a $3,000 savings account in Gill’s name, an amount provided by the Kings for this purpose, a fact known to the bank.

On January 12, 1978, the bank and Gill arranged interim financing for construction on three unrelated lots situated in a development known as One North Place, lots he had acquired from the developers of the subdivision. The developers were Collum, President of the bank; Kenneth Arnold, Chairman of the Board and Chief Executive Officer of the bank; and Michael Asaff..

On January 31 a real estate appraiser selected by the bank made the first inspection of construction on the King property, and gave the bank a certificate upon which the first draw was authorized. A second advance of $10,000 was authorized on February 3, and by April the entire $35,000 represented by the mortgage was outstanding and evidenced by Gill’s hand notes secured by the collateral mortgage and pledge.

In the course of the spring and early summer, Gill ran into trouble with his suppliers, and it is suggested that a number of them contacted him threatening to file liens on the property or properties on which his construction projects were in progress. During construction of the King house, dispute arose between Gill and the Kings as to the details of the work, the workmanship and changes made from the original specifications. Some, at least, of the changes were requested or authorized by the Kings and some money was paid to cover the added costs of these changes.

About the end of the second week in June 1978, Gill spoke to Lyons about his problems with his suppliers and the threatened liens. By June 27,1978 having exhausted the original $35,000 loan from the bank, Gill was being besieged by unsatisfied suppliers and subcontractors threatening to file' liens against the property. On this date Collum, the President of the bank, took personal charge of the Gill account. In order to protect the bank’s interest, and being unaware at the time which of the potential liens were labor liens which might prime the bank’s original mortgage, he ordered a second mortgage against the King property in the sum of $85,000. Proceeds of this loan were to be disbursed directly to the potential lienors. Lyons was the notary on this June 27 mortgage also.

It was then that Lyons wrote to Gill on June 27 advising that the bank was demanding payment of the mortgage in full. On the same day Lyons wrote to the Kings advising that the bank demanded payment of the $35,000 by June 30. He further advised that, due to cost overruns, it was necessary that he negotiate another mortgage in the amount of $85,000 to cover all lienable items on the construction, and, unless the permanent financing was accomplished within ten days, the house would be sold on the open market. The mortgage for $85,000 was executed by Gill that day. Lyons acted as notary.

To evidence the draws against this second mortgage Gill executed a $27,878.56 hand note. The money was paid directly to the suppliers and subcontractors for expenses incurred for the construction on the King lot. There is no evidence that these monies were used to pay bills for the houses being built by Gill on other lots.

The bank’s position was that it could await the filing of the liens, and thereby get into possible litigation and the certain need to clear the records; it could foreclose; or it could extend additional financing to enable Gill to clear himself with the suppliers and subcontractors. They chose the last alternative and obtained a mortgage in an amount large enough to satisfy all claimants, although only $62,878.56 was ever claimed against the Kings on both mortgages, an amount well within the contract price agreed upon by the Kings and Gill. As the President of the bank testified, the amount of the second mortgage was merely a convenient amount to cover the advances to be made. It was not the amount of the mortgage which was significant, but rather the actual draws evidenced by hand notes as in the first mortgage.

The Kings argue that one of the motivations behind this action was to clear Gill with the suppliers so that work could be continued on the other three lots acquired from the partnership in which the bank’s officers were interested. The testimony of the President and Branch Manager, with reference throughout to a file apparently consulted by each while on the stand, indicates that there was some tendency to treat all of Gill’s transactions with the bank as part of a common problem. The Kings argued such an inference is given a semblance of validity by the fact that there were one or two houses under construction besides the King residence and the three on lots purchased from the Collum-Arnold-Asaff partnership. The evidence is insufficient to warrant a finding, however, that this common treatment was more than the bank’s natural tendency to keep all its transactions with a single customer in somewhat the same place and to bear one in mind when another came up for discussion. There is nothing but a tenuous inference to controvert the bank’s assertion that each transaction, with Gill and with every other customer, was a separate and distinct item of business and so handled.

By July 7, 1978 the bank had advanced a total of $27,878.56 on the second mortgage, or a total of $62,878.56 on both. Mrs. King and her attorney visited Lyons on July 10 at which time she received the original counter letter which was subsequently recorded. On July 12 the bank received its second and final report from the real estate appraiser that the construction had been completed to the third stage, which the record indicates was the final stage of construction.

On the strength of their belief that the counter letter gave them ultimate title to the house, the Kings moved in on the 2nd or 3rd of August. On the 10th there was a meeting with the bank’s attorney (not Lyons) during which the Kings’ claims against Gill were discussed.

According to the claim eventually asserted in their suit against Gill and the bank, the Kings set forth this accounting:

“Original Contract Price .$67,200.00
Plus extras agreed upon. 11,823.04
Total contract price with extras . . . 79,023.04
Paid on the original contract . 13.000.00
Balance . $66,023.04
Payment on the extras by Mr. and
Mrs. King . $ 8.596.00
Balance . $57,427.04
Cost to correct construction . $25.309.00
Balance owed . $32,118.04”

After failing in attempts at a negotiated settlement with Gill and the bank, the Kings filed suit on August 21, 1978, seeking a judgment declaring both mortgages void ab initio; decreeing the deed from the Kings to Gill on December 8, 1977 to be a simulated transaction and null; to have the amount owed to Gill under the building contract determined to be $31,118.04; and for an injunction restraining the bank and Gill from foreclosing on the King property.

The next day, unaware of the King suit, the bank filed its petition for foreclosure by executory process on the two mortgages.

Thereafter, on August 30, the Kings wrote to the bank and Gill, notifying them that, because of their failure to make proper disclosure under provisions of the Consumer Credit Protection Act (15 U.S.C.A. §§ 1638 and 1639), the Kings were exercising their rights to rescind the mortgages affecting their property. They requested cancellation of the two mortgages.

On August 31, the Kings intervened in the bank’s foreclosure proceeding in an effort to enjoin the foreclosure restating the claims asserted in their suit of August 21.

On September 18, 1978 the bank filed an exception of no cause and no right of action to the Kings’ suit and to their petition of intervention. The cases were consolidated for trial. The exceptions were sustained on October 6, 1978, and the Kings’ suit and intervention were dismissed.

The trial judge rejected the contention that the Kings were entitled to a recision on the basis of the Federal Consumer Protection Act because the Kings were not customers of the bank as contemplated in the Act. He rejected any claim of fraud on the part of Gill or the bank. He found that the bank was a third party to the mortgages as defined in Section 2722 of Title 9 of the Revised Statutes, and as such were entitled to rely upon the public records. The counter letter, in his opinion, could have no effect upon the bank.

An application by the Kings to the Second Circuit for certiorari was denied.

Three issues are presented for consideration by the Court:

First, the Kings contend that the transfer of the lot to Gill, being without actual payment of the recited consideration, was a mere simulation and hence void.

Second, they contend that the original interim financing agreement, consisting of a transfer to Gill, a counter letter executed by Gill in favor of the Kings, and a mortgage upon the lot given by Gill to the bank constituted a consumer credit transaction within the contemplation of the Federal Consumer Credit Protection Act. (15 U.S. C.A. §§ 1601-1681t). It is asserted that the bank and Gill were the “suppliers” and “arrangers” of credit within the meaning of the Act, and the Kings were the consumers whom the Act intended to protect in a transaction of this kind. In this situation, the Kings contend, they are entitled to invoke the right of recision provided for in the Act.

Third, the Kings contend that the bank is not entitled to claim the status of a third party acting upon the faith of the public record because, they say, the bank was in reality a party to the transaction with Gill.

The contention that the sale of the King lot to Gill was a simulation is without merit. To the contrary, it was a transaction fully agreed upon by the Kings, and one in which they joined to accomplish a purpose and result they sought in order that their house could be constructed. They are not in a position to attack that deed as we shall show.

The really viable issue here is the validity of the $85,000 mortgage. And, since the result we have reached would be the identical result reached under the Consumer Credit Protection Act, there is no necessity to discuss the contention raised under that Act. A suit on that issue by the Kings against the bank is pending in the Federal District Court for the Western District of Louisiana in Shreveport. The Federal Judge has stayed those proceedings pending the finality of this suit.

Insofar as the first $35,000 mortgage of December 8, 1977 is concerned, the record amply supports the conclusion that the Kings negotiated for and approved that mortgage in favor of the bank. By their participation they were aware that they were permitting Gill to be interposed for that purpose in order to meet the bank’s policy which was designed to give its loan a preference over potential lien claimants arising from the construction. After understanding that they were conveying their property to Gill to enable him to obtain interim financing, they cannot now claim that transaction as a fraud or simulation, or seek its recision on the ground that Gill was not the true owner and the bank was not entitled to rely upon the public record doctrine. Their express consent manifested by their signatures on the sale to Gill and the implication from that fact, together with the circumstances that the sale and mortgage by Gill to the bank were simultaneously executed, make the Kings, in effect, parties to the entire transaction.

The second $85,000 mortgage of June 27, 1978, however, does not fall into the same category. The Kings did not consent to that mortgage. And we do not agree with the trial judge that the bank is entitled to be considered third parties under the public records act. Accordingly, the Kings are entitled to an injunction to prohibit foreclosure by the bank on this June 27, 1978 mortgage in the amount of $85,000. That mortgage is therefore rescinded, insofar as the Kings and their property are concerned, for the following reasons:

With respect to the $85,000 mortgage the question is whether the bank should be treated as a third party for purposes of the public records doctrine; that is, should the bank be allowed to rely upon the public records showing Gill to be the owner of the property when the $85,000 mortgage was executed in their favor.

The bank relies upon Sections 2721 and 2722 of Title 9 of the Revised Statutes and the public record doctrine espoused by McDuffie v. Walker, 125 La. 152, 51 So. 100 (1910), to protect them against the claim by the Kings that they were aware of the fact that the Kings were the true owners of the property, and that Gill was without authority to mortgage the property in'this latter instance.

Section 2721 provides:

“No sale, contract, counter letter, lien, mortgage, judgment,, surface lease, oil, gas or mineral lease or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated; and neither secret claims or equities nor other matters outside the public records shall be binding or affect such third parties.”

Section 2722:

“Third persons or third parties so protected by and entitled to rely upon the registry laws of Louisiana now in force and effect and as set forth in this Chapter are hereby redefined to be and to include any third person or third party dealing with any such immovable or immovable property or acquiring a real or personal right therein as purchaser, mortgagee, grantee or vendee of servitude or royalty rights, or as lessee in any surface lease or leases or as lessee in any oil, gas or mineral lease and all other third persons or third parties acquiring any real or personal right, privilege or permit relating to or affecting immovable property.”

The bank contends that neither the counter letter, which declares that the property in question was transferred to Gill to facilitate interim financing and that the Kings were the true owners of the property, nor the bank’s knowledge that the Kings had transferred the property to Gill to facilitate interim financing can avail to affect their mortgage. This position is based upon the premise that the counter letter was not filed of record and the fact that the bank was aware that the Kings, and not Gill, were the true owners was also a matter dehors the public record.

According to Article 3342 of the Civil Code, conventional mortgages are acquired only by the consent of the parties. In the instant case the bank was aware of the fact that the Kings were the true owners of the property mortgaged. Nevertheless, it sought to encumber the King property by having Gill execute the mortgage without the consent of the Kings.

Article 3342 also provides that mortgages, and the same applies to sales, are only allowed to prejudice third persons when they have been publicly inscribed on records kept for that purpose. McDuffie V. Walker, supra. Thus, in the case of the sale from the Kings to Gill we are called upon to determine whether the bank was a third person who was entitled to rely upon that deed as a conveyance to Gill.

Article 3343 of the Civil Code is pertinent to this determination. The article defines third persons as used in Article 3342 to be “all persons who are not parties to the act.” And Article 3344 sums up the effect of the two preceding Articles as follows: “Consequently, neither the contracting parties nor their heirs, nor those who were witnesses to the act by which the mortgage [or sale] was stipulated, can take advantage of the nonin-scription of the mortgage [or sale].”

Under the circumstances of this case we deem it appropriate to hold that the bank was a witness to the act of sale from the Kings to Gill. Lyons, the attorney for the bank, signed the sale as notary. As the bank’s attorney he designed the entire loan package under their instructions and in keeping with their policy in such cases. His actions were in fact the actions of the bank, and his knowledge should be imputed to the bank as much as would be the case if the President of the bank had signed the deed as a witness. As a fictitious legal person the bank could not act except through its officers, agents or attorneys.

As a witness to the act of sale, the bank acting through its attorney, was aware that the sale was withoút consideration. Lyons, having prepared the loan package and counter letter, was aware that the Kings remained as the true owners of the property and that the understanding of all parties did not include the authority of Gill to grant a second mortgage on the King property. Being a witness to the act of sale through its attorney the bank was not a third person in legal contemplation. McDaniel v. Stoval, 25 La.Ann. 495 (1873); Brown v. Sadler, 16 La.Ann. 205 (1861).

Under these circumstances the act of mortgage dated June 27, 1978 in the sum of $85,000 bearing upon the King property is declared null and void and without effect, and an injunction shall issue from the trial court prohibiting foreclosure upon that mortgage by the bank. Insofar as the December 8, 1977 mortgage in the sum of $35,000 is concerned, the foreclosure may proceed in accordance with law. When the property has been sold at public auction the trial court shall determine the indebtedness of the Kings to Gill and adjudicate the rights of all parties, including the bank, to the proceeds of the sale.

For the reasons assigned, the ruling of the trial court is affirmed in part and reversed in part, and the case is remanded to the trial court to be proceeded with in a manner not inconsistent with this opinion.

      Judge John Charles Boutall participated in this decision as Associate Justice Ad Hoc sitting in the place of Justice Marcus.

      . See the most recent case in this Court, Martin v. Schwing Lumber & Shingle Co., 228 La. 175, 81 So.2d 852 (1955), where the Lumber Company’s acquisition by ten years’ prescription was denied because the company’s attorneys had knowledge of Martin’s undivided one-half interest in the property, the Court saying the attorneys’ knowledge was to be imputed to the corporation. Similarly, in the most recent case to consider this issue, Barber v. Testa, 331 So.2d 139 (La.App. 3d Cir. 1976), one year’s prescription was held to have barred a suit to annul a purported cash sale which was a security device with right of redemption. The Court of Appeal held that plaintiff’s attorney had actual notice of the alleged fraud and that notice was to be imputed to the clients.


author: TATE and MARCUS, Justices:

text:
    Roberta Allen BELL v. John Wesley BELL.
    No. 64431.
    Supreme Court of Louisiana.
    May 4, 1979.
   TATE and MARCUS, Justices:

Although the majority feels it need not decide the issue until after final judgment, we are of the opinion that, absent a judicial separation, the only fault material to the adjudication is the adultery upon which the divorce is based.


text:
    STATE of Louisiana v. David BUCHANAN.
    No. 64321.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re State of Louisiana through the District Attorney, John M. Mamoulides, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. Nos., 77-2442, 75-2227, 78-1119, 78-1118, 77-2397, 77-2268, 77-2161.

Denied. State’s notice to trial court of intention to apply for Writs in this court was untimely. See State v. Bullock, 263 La. 945, 269 So.2d 824 (1972).


text:
    STATE of Louisiana v. Richard M. BROWN.
    No. 64108.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Richard M. Brown, applying for writ of habeas corpus, certiorari, mandamus and prohibition. Orleans Parish. No. 250-927.

Writ denied. Earlier application alleged some of the same issues. State v. Brown, La., 364 So.2d 130.

DIXON, J., would grant the writ and order an evidentiary hearing.


text:
    STATE of Louisiana v. Larry Lee BLACKWELL.
    No. 64254.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Larry Lee Blackwell applying for writ of mandamus. Parish of Tangipahoa. No. 29039.

Writ granted. The trial court is ordered to furnish the transcript of the plea of guilty (Boykin hearing) to applicant.

SUMMERS; C. J., MARCUS and BLANCHE, JJ., dissent.


text:
    George E. BLANCHARD v. ENGINE & GAS COMPRESSOR SERVICES, INC., v. COMMERCIAL UNION INSURANCE COMPANY.
    No. 64206.
    Supreme Court of Louisiana.
    May 17, 1979.
   In re George E. Blanchard, applying for certification from the Fifth Circuit Court of Appeal. No. 75-4216.

Decline. The jurisprudence of this Court does not warrant an additional pronouncement at this time. See Reeves v. Louisiana & Arkansas Ry., 282 So.2d 503 (La.1973); Lushute v. Diesi, 354 So.2d 179 (La.1978); La.Sup.Ct. Rules XII, Sec. 1.

DENNIS, J., concurs.


text:
    STATE of Louisiana v. Richard M. BROWN.
    No. 64108.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Richard M. Brown, applying for reconsideration of writ denials. Orleans Parish. No. 250-927.

Application for rehearing of writ denials are not considered. Rule 9, Sec. 6.


text:
    STATE of Louisiana v. Steven LUKEFAHR, Joseph Trotta and Gregory Falcone.
    No. 64395.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Roger Williams Insurance Co. applying for supervisory writs. Parish of Washington. No. 34,064.

Writ denied. See art. 330, C.Crim.Proc.


text:
    STATE of Louisiana v. Kermit GEORGE.
    No. 64451.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Kermit George, applying for writs of certiorari, review, prohibition, mandamus and stay order. Orleans Parish. No. 269-009.

Granted. The respondent is ordered to produce evidence of the authority of the agent emanating from the Governor of Florida “commanding him to receive the person to be extradited and to deliver him to the proper authority”; cf. La.C.Cr.P. 277; within ten days or else release the relator.


text:
    STATE of Louisiana ex rel. Robert WALKER v. Frank BLACKBURN, Warden.
    No. 64418.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Robert Walker applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of Orleans. No. 248-949.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Bruce SHANNON.
    No. 64538.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re State of Louisiana applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 255-335.

Writ granted. The district attorney is ordered to obtain the presence of the absent witness without undue delay; and to institute, if he wishes, proceedings to determine the proper source of funds for reimbursement if he is entitled to it, after impleading the proper parties.


text:
    STATE of Louisiana v. Sidney P. DUPRENE, Jr.
    No. 64600.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Sidney P. Dufrene, Jr., applying for writ of review. Parish of Terrebonne.

Writ granted. Bond reduction to $10,000 confirmed.


text:
    STATE of Louisiana ex rel. John SULLEN v. Honorable Frank A. MARULLO, Jr.
    No. 63710.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re John Sullen applying for writ of mandamus. Parish of Orleans. No. 185-236.

Writ denied; moot.


text:
    STATE of Louisiana ex rel. Leroy MADISON v. Ashby PETTIGREW, Judge.
    No. 64399.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Leroy Madison applying for writs of mandamus or prohibition. Parish of Terre-bonne. Nos. 58,349 & 65,489.

Denied. Moot. The application, was denied by the trial court on May 4.


text:
    STATE of Louisiana v. Richard Michael DOWLING.
    No. 64424.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Richard Michael Dowling applying for writs of certiorari, prohibition and mandamus. Parish of Webster. No. 46,934.

Denied; adequate remedy in the event of conviction.


text:
    STATE of Louisiana v. Donald Reed BROWN.
    No. 64480.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Donald Reed Brown, applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 11994 -78.

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


text:
    STATE of Louisiana ex rel. Jimmy B. TROSCLAIR v. Frank BLACKBURN, Warden.
    No. 64491.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Jimmy B. Trosclair applying for writ of habeas corpus. Parish of Jefferson.

Denied.


text:
    JACKSON PARISH SCHOOL BOARD v. John MAGEE et al.
    No. 64500.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re John Magee, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. C/A No. 13,808.

Writ denied.


text:
    FIRST GUARANTY BANK v. Reid P. ALLAIN et ux.
    No. 64502.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re First Guaranty Bank applying for writ of certiorari, First Circuit Court of Appeal. No. 12,535. Parish of Tangipahoa.

Writ denied.


text:
    STATE of Louisiana v. Connie TOUCHET.
    No. 64505.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Connie Touchet, applying for writs of certiorari, prohibition, mandamus and stay order. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. James C. TRIPLETT.
    No. 64537.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Orleans Parish. No. 265-390.

Writ denied.


text:
    STATE of Louisiana v. Morris WALKER.
    No. 64541.
    Supreme Court of Louisiana.
    May 21, 1979.
   In' re State of Louisiana applying for supervisory writs. Parish of Ouachita. No. 38,836.

Denied.


text:
    STATE of Louisiana v. John F. CHAMBERS.
    No. 64543.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re John F. Chambers, applying for motion for temporary restraining order and order to show cause for a preliminary injunction. Jefferson Parish. No. 78-93.

Writ denied.


text:
    STATE of Louisiana v. Keith Allen STEPHENSON and Mary Josephine Stephenson.
    No. 64641.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Keith Allen Stephenson and Mary Josephine Stephenson applying for supervisory writs and for a stay order. Parish of Ouachita. Nos. 79-38A and 79-183A.

Writ denied.


text:
    STATE of Louisiana v. Corby Lynn WILLIAMS.
    No. 64654.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Corby Lynn Williams, applying for remedial writs of certiorari, prohibition, mandamus and stay order. Parish of Vernon. No. 30,684.

Denied.


text:
    STATE of Louisiana v. Mary Lorraine RINKER.
    No. 64337.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Mary Lorraine Rinker applying for writ of certiorari, mandamus and prohibition. Parish of St. Mary. No. 92,311.

Writ granted. Evidentiary hearing ordered.


text:
    STATE of Louisiana v. Edward Lee GIOVANNI, Jr.
    No. 64006.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Edward Giovanni, Jr., applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Calcasieu.

Writ granted.

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

It is ordered that a Writ issue herein, and that the Honorable Henry L. Yelverton, Judge, and the Fourteenth Judicial District Court for the Parish of Calcasieu transmit to the Supreme Court of Louisiana on or before the 4th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana v. Clara J. RIDEAU.
    No. 64630.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re Clara J. Rideau, applying for writs of certiorari, prohibition or mandamus. Parish of Calcasieu. No. 2839-77.

Granted.

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

It is ordered that a Writ issue herein, and that the Honorable L. E. Hawsey, Jr., Judge, and the Fourteenth Judicial District Court for the Parish of Calcasieu transmit to the Supreme Court of Louisiana on or before the 4th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana v. Roosevelt REAVES.
    No. 64523.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans. No. 268-377.

Writ granted.

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

It is ordered that a Writ issue herein, and that the Honorable Rudolph F. Becker, III, Judge, and the Criminal District Court for the Parish of Orleans transmit to the Supreme Court of Louisiana on or before the 4th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana v. Julius E. HARDY.
    No. 64517.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re State of Louisiana, through the District Attorney, Ossie Brown, applying for supervisory writs. Parish of East Baton Rouge. No. 1-79-185.

Writ granted.

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

It is ordered that a Writ issue herein, and that the Honorable Elmo Lear, Judge, and the Nineteenth Judicial District Court for the Parish of E. Baton Rouge transmit to the Supreme Court of Louisiana on or before the 4th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana v. Thomas CONOVER.
    No. 64358.
    Supreme Court of Louisiana.
    May 21, 1979.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Orleans Parish. No. 40111 Magistrate. •

Granted.

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

It is ordered that a Writ issue herein, and that the Honorable Gerard J. Hansen, Judge, and the Criminal District Court for the Parish of Orleans transmit to the Supreme Court of Louisiana on or before the 4th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.