author: BOYER, Acting Chief Judge.

text:
    The LEWIS STATE BANK, a Florida Banking Corporation, Appellant, v. The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. HH-78.
    District Court of Appeal of Florida, First District.
    April 5, 1978.

      John D. Buchanan, Jr. of Henry, Buchanan, Mick & English, Tallahassee, for appellant.
    J. Lewis Hall, Jr. of Hall & Booth, Tallahassee, for appellee.
   BOYER, Acting Chief Judge.

By this appeal the Lewis State Bank, plaintiff in the trial court, seeks reversal of an order dismissing its second amended complaint with prejudice.

It is axiomatic that a hearing on a motion to dismiss is not a proper substitute for trial and a plaintiff is not required to prove his cause of action in his complaint. The cause of action need only be alleged. The question of the sufficiency of the evidence which the plaintiff will likely be able to produce in a hearing on the merits is wholely irrelevant and immaterial in reaching such a determination. (See Hopke v. O’Byrne, 148 So.2d 755 (Fla. 1st DCA 1963).) In acting on a motion to dismiss a trial judge may not properly go beyond the four corners of the allegations of the complaint. If the complaint alleges the necessary legal requisites of a cause of action and the allegations are sufficient to inform the defendant of the nature of the cause against him, then it must be held sufficient. (Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974)). With those principles in mind, we must examine the dismissed complaint to determine the propriety of the order here appealed.

By its second amended complaint the Bank alleged that on June 8, 1966 the defendant, the Travelers Insurance Company, insured one Symon under a specified contract of insurance requiring an annual premium of $1,609.60; that on July 16, 1971 Symon assigned said policy to the Bank as collateral security for an indebtedness owed by Symon to the Bank; that the insurance company acknowledged the assignment; that Symon thereafter died; that Symon is yet indebted to the Bank; that following Symon’s death the Bank discovered that some year and a half earlier the insurance policy had been allowed to lapse for nonpayment of premium; that no notice had been given to the assignee Bank; “that the defendant by custom and usage usually notifies the assignees of said policies of a lapse of policy”; that the Bank “was supposed to be notified by virtue of the Defendant’s business policy concerning this insurance contract”; that the insurer “by custom and contract would send notice of the default to the insured, Donald G. Symon and also send a notice and form for reinstatement to the insured, Donald G. Symon and that by virtue of notification of the insured, the defendant by custom and actual practice was required to notify the as-signee of the default in the payments as it did the insured Donald G. Symon.”

The plaintiff tendered payment of premiums required for reinstatement, prayed that the insurance be reinstated and that the insurer be required to pay to the Bank the face value of the policy less any outstanding loan.

We first consider appellant’s claim that by virtue of F.S. 627.422 the appellee insurance company was required to send it, as assignee, notice of default in the payment of premiums. We find no such provision in that statute. Neither does any such requirement appear in the assignment and the parties agreed during oral argument that the policy itself contained none.

The general rule regarding an insurer’s duty to notify an assignee of premiums due or of policy lapses may be found in 5 Couch on Insurance 2nd sec. 30.143, as follows:

“In the absence of any statute or contract of the insurer to the contrary or conduct of the insurer giving rise to a duty to notify the assignee, there is no duty on the insurer to notify an assignee of the policy of premiums or assessments due thereon . . ”

That principle was applied in a leading case, Sorenson v. National Life Insurance Co., 56 Wis.2d 92, 201 N.W.2d 510 (1972). The facts there were very similar to those sub judice. In the Sorenson case the insurance company issued a life insurance policy to one Stowe, who subsequently assigned the policy as collateral for liabilities owed or arising in the future to Sorenson. The assignment was filed with the insurance company on a form provided by the company. No premium notices were sent to the assignee. The assignee allowed the policy to lapse for failure to pay premiums when due. Stowe died approximately one year after the policy lapsed. The insurance company subsequently denied a claim on the policy. Sorenson attempted to recover death benefits, claiming that as the insured he was entitled to the same notice. The lower court sustained a demurrer to the action. Wisconsin’s Supreme Court ruled that absent a statute or contract to the contrary, the assignee was not entitled to notice unless he was obligated to pay the premiums on the policy and that recordation of the assignment was insufficient to imply a contract requiring notice be sent to the assignee.

The general rule above quoted also allows specific courses of conduct between the insurer and the assignee to give rise to a duty to notify the assignee of premiums due or lapses. Cases on that point are collected in an excellent annotation appearing at 68 A.L.R.3d 360 (1976). Several of those cases have been referred to by the appellant.

In Elgutter v. Mutual Reserve Fund Life Association, 52 La.Ann. 1733, 28 So. 289 (1900), the assignee was held entitled to notice of premiums due before the insurance contract could be terminated for nonpayment. However, the insurance contract allowed the insured to designate someone other than himself to receive notice, the insurance company had in fact notified the assignee of monthly premiums due for approximately four years prior to the termination of the insurance, the assignee was responsible for making the premium payments under the assignment, and demand for reinstatement was made only seven days after the premiums were due.

In Mutual Life Insurance Co. v. Davis, 154 S.W. 1184 (Tex.Civ.App.1913), the insurance company’s actions created a right in the assignee to notice. In that case the insurance company agreed with the assign-ee that a collector would be sent to the assignee’s place of business to collect premiums from the assignee, who was responsible for paying the premiums. The insurance company also agreed to notify the assignee of any failure to collect the premiums and afford the assignee an opportunity to pay the premiums. The insurance company was advised that the assignee kept no records of premiums due and was thus aware that the assignee relied upon the notice offered by the company. The company followed the promised procedure for nine payments and the premiums were promptly paid. The insurance company failed to send a collector, failed to send notice of the premium due, and failed to notify either the assignee or the insured of the resulting forfeiture. Under those circumstances, the court ruled that the insurance company was estopped to assert the forfeiture.

In Missouri Cattle Loan Company v. Great Southern Life Insurance Company, 330 Mo. 988, 52 S.W.2d 1 (1932), the court refrained from holding that custom and conduct alone would give rise to a duty to notify the assignee of premiums due, finding instead that written assurances that such notices would be given to the assignee, in addition to actual conduct over a three year period when notices were given, gave rise to reasonable reliance by the assignee that notice would be given. Under those circumstances the court found the insurance company was estopped to assert forfeiture for non-payment.

In each of the cases upon which the appellant has relied, the assignee has been given a right to notice by either some provision of the insurance contract or express assurances from the insurance company that the assignee would be notified, in conjunction with a practice established of actually notifying the assignee.

Turning now to Florida, we find no ease “on all fours”. Our sister court of the Second District said in a somewhat analogous case that, there being nothing in the policy or in any arrangement between the parties requiring that notice be given to the assignee, “the insurer was under no duty to inform the assignee of the time when payment of premiums was required.” (Massachusetts Mutual Life Insurance Company v. Pinellas Central Bank & Trust Company, 175 So.2d 245 (Fla. 2d DCA 1965), at page 248).

Appellant relies heavily on an opinion of this court, Travelers Insurance Company v. Tallahassee Bank and Trust Company, 133 So.2d 463 (Fla. 1st DCA 1961). That case, however, is clearly distinguishable. In the Travelers case the bank was assigned a five-year term life insurance contract. Under the contract, the term insurance was automatically convertible to whole life upon paying five years of premiums. The real issue in question was to whom the converted insurance was to be submitted. The insurer submitted the policy to the insured, but not the assignee. The court held that the assignee was entitled to the converted policy under the terms of the original insurance contract and the assignment. Since the assignment gave the assignee the right to exercise all rights and options, and since the receipt of a converted policy was a right granted under the original insurance contract, the insured was not authorized to exercise the right by accepting or rejecting the converted policy. The essential holding in the Travelers’ case is that both parties, the insurer and the insured or his assignee, are bound by the terms of the insurance contract. That proposition is in line with the holding of the Massachusetts Mutual Life Insurance Company v. Pinellas Central Bank and Trust Company, supra.

It is interesting to note that the assignee in Sorenson v. National Life Insurance Co., supra, also attempted unsuccessfully to rely on our decision in the Travelers case as supporting his view that the assignee was owed a duty of notification. (See 68 A.L. R.3d 354, 355.) The Wisconsin Supreme Court did not address the Travelers decision, however, apparently finding it inapplicable to the case in controversy.

In the case sub judice, the insurance contract provided that premiums were payable on or prior to the due date. In the event of a default the insured was allowed a thirty-one day grace period for payment of the overdue premium. After the grace period, the contract provided that the insurance would continue as Extended Term Insurance, with the premiums to be paid from the cash surrender value, so long as there was a cash surrender value. At the expiration of the Extended Term Insurance, the insurance contract expired.

The terms of that contract make no provision for notice to either the insured nor his assignee, who took subject to those terms. Neither does the complaint allege any agreement between the appellant and appellee amending the contract.

Appellant argues that conduct by an insurer can create a duty to notify an assign-ee that policy premiums are due, citing Couch on Insurance, 2d Section 30.143 (1960). Appellee concedes such to be true and, indeed, the authorities which we have already alluded to are to that effect. Appellant in its brief, citing Elgutter v. Mutual Reserve Fund Life Association, supra, further urges that “where an assignee was led into the belief that he could safely rely on receiving notice the policy could not be cancelled by the insurer for non-payment of premiums without notice to the assignee.” We take no issue with that contention: However, it has no application here. Appellant, obviously being careful not to allege that which it could not prove (for which it is to be commended), carefully avoided alleging any reliance by it upon any conduct, custom or usage on the part of appellee.

Although the second amended complaint alleges that the insurer “by custom and usage usually notifies the assignees” and that appellant “was supposed to be notified by virtue of defendants business policy” there is no allegation of any conduct by the insurer, toward the bank, tending to lead the bank to rely justifiably on an expectation that it would receive notice of nonpayment of premiums: Nor is there an allegation that the bank relied on any such conduct.

There being no duty on the part of appel-lee to have notified appellant of premiums due on the policy, nor lapse thereof, and no contrary conduct on the part of appellee sufficient to invoke estoppel nor to effect an amendment to the policy, having been alleged, we conclude that the learned trial judge did not err in entering the order of dismissal here appealed.

AFFIRMED.

SMITH, J., and McLANE, RALPH M., Associate Judge, concur.


source: Caselaw Access Project

author: McLANE, RALPH M., Associate Judge.

license: Public Domain

text:
    INTERSTATE FIRE INSURANCE COMPANY, Appellant, v. Clyde B. HAMILTON, Appellee.
    No. HH-100.
    District Court of Appeal of Florida, First District.
    April 5, 1978.

      Michael S. Smith, Asst. State’s Atty., Perry and Stephen A. Smith, Lake City, for appellant.
    Don Dansby, Perry, Atty., for appellee.
   McLANE, RALPH M., Associate Judge.

The insurance company appeals from the judgment entered on two fire policies, one insuring appellee’s building and the second, the contents of the building.

The controversy revolves around the total loss of both the building and its contents. Under the strict language of the policies, both had lapsed for nonpayment of premiums for more than four weeks.

So far as here material, the policies provide in part:

“PAYMENT OF PREMIUM: Each premium is due and payable in advance in the home office of the company but may be accepted elsewhere by a duly authorized agent. All premiums paid shall be forfeited to the company and this policy shall terminate by lapse and all liability hereunder shall cease when the required premiums are more than four (4) weeks in arrears. If the agent shall not call for the premiums when due, or shall refuse to accept said premiums, the insured is required without notice to pay the premiums at the branch office of the company or remit the same directly to the home office of the company.”
“CANCELLATION OF POLICY: The policy shall be canceled at any time at the request of the insured in which case this company shall upon demand and surrender of this policy, refund the excess of said premiums above the customary short rates for the expired time. This policy may be canceled at any time by this company, by giving to the insured a five (5) days written notice of cancellation with or without tender of the excess of paid premium above the pro-rata premium for the expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand.”

When the premiums were past due for the months of April and May, 1974, Runnels, the agent for the company, on May 22, 1974 dispatched by mail a memo to the insured. It notified him of the two months delinquency and requested payment “by return mail”. The memo was directed to the insured’s residence in a town other than where the agent resided and the property was located. The memo was not received by insured until May 29,1974. In response, the following day the insured purchased and mailed a money order to the local agent, who received payment “sometime after May 30, 1974”. James A. Runnels, the agent, while authorized to write policies and collect premiums, testified he was not authorized to receive “double premiums”. Runnels forwarded the payment to the company without in anywise indicating to the insured his lack of authority or that there was any possible or probable difficulty with the insurance coverage. On the day of May 30th, 1974, the insured mailed the past-due premiums to agent Runnels, the building and its contents were completely destroyed by fire. The company returned the late premiums solicited by its agent and refused payment under the policies. No question of fraud is raised by the company.

The property was owned by the insured’s mother, who was a customer of Runnels for about fifteen years. At the mother’s death, the agent solicited continuation of the business from the son, Hamilton, who then became the named insured.

At the trial no evidence was adduced as to value of the building or its contents. The jury awarded Hamilton the face value of both policies. This appeal followed.

The landmark case of Industrial Life & Health Ins. Co. v. Cofield, 110 Fla. 315, 148 So. 549 (1933) is heavily relied upon by the appellee, where the Supreme Court said:

“The recognized rule in this state is that an insurer under clauses of the kind just quoted cannot secure and retain the benefit of the collection of its premiums when past due, and at the same time, without notification to the insured, insist upon a forfeiture of the policy by lapse of same for nonpayment of premiums on the precise days they were due under the strict conditions of the contract. Palatine Ins. Co. v. Whitfield, 73 Fla. 716, 74 So. 869.”

On the other hand, the appellant insists that for a waiver or estoppel to be effective the insurance company must retain the late premium.

We, in Shaw v. Mass. Mutual Life Ins. Co. (Fla.App. 1st District), 298 So.2d 183 (1974), noted:

“A forbidden act of the insured that leads to forfeiture, may ... be itself waived by acts or conduct-of the insurer’s representatives acting in a manner inconsistent and irreconcilable with the idea that a forfeiture has taken place.”

The Court then places the burden upon an insurer who intends to stand on a forfeiture clause to inform its insured “. as soon as practicable after . . . ” ascertaining the facts upon which it predicates its claim of forfeiture.

In Shaw, it should be noted the life insurance company rejected the premium and stood upon a lapse of the policy after the death of the insured. The Court reversed the trial judge who had directed a verdict for the insurer, stating the jury should properly determine liability.

So in this case, the fire occurred on the same day the premium was mailed to the agent who in turn forwarded it to the company. It was after receipt by the company that for the first time the insurer indicated it would take the position the policy had lapsed.

We then have a case for the jury to determine. The trial judge was correct in denying the motion for directed verdict.

Point II raised by the appellant is well taken. The record is void of any evidence as to value of the contents of the destroyed building. It was incumbent upon the plaintiff to prove the contents of the building and their value.

The Court should have granted insurer’s motion for a directed verdict upon the claim under the policy covering the contents. However, once liability is found on the policy insuring the building, which was a total loss, the “Valued Policy Law”, Section 627.702, F.S., applies. The statute in part provides:

“. . . such total loss shall be in the amount of money for which such property was so insured as specified in the policy . .

Appellant by Point III argues that plaintiff’s requested instruction # 1, as amended by the Court, was erroneously given. Unfortunately, we have before us an incomplete record of the proceedings in the trial court. We learn from a motion filed by the appellant that a complete transcript of the proceedings is unavailable for the case was not reported by a court reporter. Only the requested charges are a part of the record on appeal. In complete fairness to the trial judge, we have no knowledge whether his general instructions may clarify, explain, or comment upon the requested instruction specifically what, if anything, he instructed the jury it might consider on the issue of waiver or estoppel.

However, plaintiff’s requested instruction # 1, as amended by the Court, and given, simply says if Runnels was Interstate’s agent “and collected the premium and revived the policies . . the jury should find for the plaintiff. As given, the instruction does not follow the law found in Industrial Life & Health Ins. Co., supra, and Shaw v. Mass. Mutual Life Ins. Co., supra. The Court committed error.

Finally, the taxing of costs by the Court without a motion or other appropriate pleading is assigned as error. In the absence of a stipulation or agreement on costs, they should be taxed pursuant to Section 57.021, F.S.

REVERSED AND REMANDED for further proceedings.

McCORD, C. J., and BOYER, J., concur.


author: PER CURIAM.

text:
    Lewis JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1531.
    District Court of Appeal of Florida, Second District.
    April 5, 1978.
    Jack 0. Johnson, Public Defender, and Susan G. Sexton, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant/defendant Lewis Jackson, Jr. was found guilty of attempted robbery with a firearm and aggravated assault with intent to commit a felony, to wit: robbery on July 20,1976 and sentenced on each offense to consecutive terms of five years imprisonment. We affirm both the judgments, but the sentences must be reversed and vacated since the offenses were facets of the same transaction.

The state introduced evidence at trial that appellant and his codefendant, Ernest Weeks, rang J. Martin Burkholder’s doorbell late one night. When Burkholder opened the door, appellant and Weeks entered the house saying that it was a stickup, to give them his money, and to get on the floor. Before Burkholder could respond appellant began hitting him on the head with a gun. While this was going on another member of the household, Sandra Daugh-tery, entered the room, and Weeks grabbed and held her while appellant and Burkholder scuffled. Appellant tried to take Burk-holder’s wallet but was unable to get it out of his pocket. The two men eventually left without the wallet.

Under these facts the aggravated assault and the attempted robbery were facets of the same transaction, and appellant may be sentenced only for one of the offenses. Nowlin v. State, 320 So.2d 468 (Fla. 4th DCA 1975), rev’d on other grounds, 346 So.2d 1020 (Fla.1977). We find no error in any of the other points raised by appellant.

Accordingly, the judgments are affirmed, the sentences are vacated, and the cause remanded for resentencing of appellant on the greater of the two charges, the attempted robbery.

BOARDMAN, C. J., and GRIMES and RYDER, JJ., concur.


author: GRIMES, Judge.

text:
    Jerry FRANKLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1320.
    District Court of Appeal of Florida, Second District.
    April 5, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, Stephen O. Rushing, Asst. Public Defender, and William Murphy, Legal Intern, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In this appeal from an order revoking probation we reject all of appellant’s points, but we find the need to comment upon one of them.

While on probation the appellant was charged by information with aggravated assault and with carrying a concealed firearm. Several days later an affidavit seeking to revoke appellant’s probation was filed, and appellant was arrested pursuant to the warrant issued thereon. The affidavit and the warrant alleged that the appellant had violated the condition of his probation that he live and remain at liberty without violating the law, in that he had committed the aggravated assault for which he had been charged in the information. Following a jury trial appellant was convicted on both counts of the information. At appellant’s sentencing, the court also revoked appellant’s probation on the basis of his conviction. Appellant’s counsel was present at the revocation, and he raised no objection to the procedure which was followed. However, appellant now contends that, contrary to the dictates of State v. Spratling, 336 So.2d 361 (Fla.1976) the court improperly used the trial of his criminal case as a vehicle for a probation revocation hearing.

In Spratling the defendant was charged with murder. Shortly thereafter a rule to show cause was issued charging that he had violated the condition of his probation that he live honorably when he committed the murder with which he was charged in the indictment. The defendant was tried for second degree murder and was found not guilty. Immediately after the verdict was announced, the court, over objection, revoked the defendant’s probation based upon testimony given at the trial that he had been carrying a pistol. The supreme court affirmed the holding of the district court of appeal that, under the peculiar circumstances of that case, the defendant’s probation revocation did not accord with due process requirements. The court said:

The above-described Rule Nisi issued by the trial judge ordered respondent to show why his probation should not be revoked for violation of condition (e) but did not include the actual charge for which probation was eventually revoked — carrying a pistol in violation of condition (f). Furthermore, respondent was not given notice that his trial at which he was acquitted would constitute a probation revocation hearing. Since respondent never received notice of the claimed violation of probation which was to serve as the basis for the revocation of his probation, he has not been afforded due process.

Spratling, supra, at 364.

We find that Spratling is distinguishable because there the defendant was found not guilty of the crime alleged to be the predicate for the violation of his probation. Even though the court could have revoked Spratling’s probation based upon similar testimony given at a subsequent hearing, the court never notified the defendant that testimony given at the trial would constitute the basis for the revocation.

In the instant case, it is the appellant’s conviction, rather than any testimony, which provided the basis for revocation. The opinion of the district court of appeal in Spratling pointed out that the conviction of an offense can be the basis of a probation revocation. Spratling v. State, 310 So.2d 306 (Fla. 1st DCA 1975). The revocation of probation following a guilty verdict on charges upon which the revocation was based was said to comport with due process in Fuller v. State, 294 So.2d 367 (Fla. 3d DCA 1974).

Our holding does not conflict with Reynolds v. State, 352 So.2d 1263 (Fla. 2d DCA 1977), because the record in that case does not indicate that any affidavit of probation violation was filed, or that Reynolds was given any kind of notice that his conviction in that case might form the basis for a probation revocation without a further hearing.

In the final analysis, we cannot see what purpose would be served in this case by a reversal of the probation revocation for a further proceeding at which time appellant’s conviction could be introduced as the basis for revoking his probation. We find that the appellant was afforded due process by the procedure which was followed.

AFFIRMED.

BOARDMAN, C. J., and RYDER, J., concur.


author: MELVIN, Judge.

text:
    Kenneth A. PLANTE, Dempsey J. Barron, Phillip D. Lewis, Jack D. Gordon and Jon C. Thomas, Petitioners, v. The FLORIDA COMMISSION ON ETHICS, Respondent.
    No. HH-431.
    District Court of Appeal of Florida, First District.
    April 6, 1978.

      Tobias Simon, Miami, Charles L. Carlton, and Richard C. McFarlain, Tallahassee, for petitioners.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., for respondent.
    Bruce C. Starling, Gen. Counsel, Miami, and Donald M. Middlebrooks, Miami, of Sunshine Amendment, Inc., for amicus curiae.
   MELVIN, Judge.

Upon consideration of the pleadings filed in this cause by the petitioners and respondent and oral argument of counsel, this Court on December 23, 1977, 354 So.2d 87, rendered its opinion wherein it was considered, held and determined that, as to a member of the Legislature of Florida, the respondent was without authority to enter any judgment as to “probable cause” that failure on the part of such member to file financial disclosure statements constituted a breach of public trust. The authority of the respondent to conduct investigations, file its report and to disseminate the same was ruled upon. The Court' ruled that under Article III, Sections 2 and 4, Florida Constitution, the Senate is the sole judge of the qualifications and elections of its members and has the sole power to punish or to expel any one of its members. It follows, therefore, that the Senate has the sole power to adjudge that a Senator has committed any act, the effect of which would constitute a breach of the public trust and for which he should be unseated or otherwise disciplined.

It appears from the pleadings filed before this Court that the respondent Commission, on February 15, 1978, entered its formal order, paragraph 2(c) thereof, ruling that petitioners “by failing to file such disclosure, the above-named parties have breached the public trust.”

It is blatantly apparent that a body, such as the Commission, found without even the authority to find “probable cause” that an offense has been committed may not subsequently find such person “guilty” of a breach of the public trust by reason of failure to make such filing.

Paragraph 2(c) of the final order and public report of said Commission of date February 15, 1978, being in plain conflict with the order and opinion of this Court, is void and without any force and effect.

With reference to the petition to find the respondents in contempt of this Court, we find that they are not in contempt of court. Upon a reading of the transcript of the proceedings conducted by such respondents, it is clear that they acted upon inadequate legal advice and there is nothing before this Court to indicate that either commissioner did not act in good faith.

IT IS SO ORDERED.

BOYER, Acting C. J., and ERVIN, J., concur.


text:
    Janet Irene FUCHS, Appellant, v. James Aaron FUCHS, Appellee.
    No. HH-83.
    District Court of Appeal of Florida, First District.
    April 7, 1978.
    John Paul Howard, Jacksonville, for appellant.
    John E. Hankal, St. Augustine, for appel-lee.
   PER CURIAM.

Having considered the briefs and arguments of counsel, we conclude the lower court erred in awarding to the husband a special equity in certain property jointly owned by the parties during the marriage. The husband neither pleaded nor presented substantial competent evidence of his entitlement for such award. Suhor v. Suhor, 341 So.2d 277 (Fla.1st DCA 1977). The judgment is otherwise affirmed.

REVERSED IN PART AND AFFIRMED IN PART.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Michael EVANS, Appellant, v. STATE of Florida, Appellee.
    No. HH-423.
    District Court of Appeal of Florida, First District.
    April 7, 1978.

      David Ackerman, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of an order of revocation of probation urging the evidence was insufficient to find a violation of probation had occurred.

On April 27, 1976, appellant was adjudged guilty of burglary and was sentenced to seven years imprisonment. After having served one year of said term in the county jail, appellant was to be placed on probation for six years. Appellant was also adjudicated guilty of several additional felony charges and was placed on five years probation, such probation to run concurrently with the six year probation.

During the periods of probation, affidavits of violation of probation were filed alleging that appellant violated Condition 4 of his probation (“You will live and remain at liberty without violating any law”) in that (a) he committed an aggravated battery upon William Gregory on July 1, 1977, and (b) he committed a robbery of William Gregory on July 1, 1977. After a hearing on the violations, appellant was adjudged guilty of violations of probation and his probations were revoked. Appellant was sentenced to five years imprisonment for burglary with credit for sixty-two days jail time. Appellant was sentenced to five years imprisonment with credit for sixty days on each additional count, such sentences to run concurrently with each other and with the sentence imposed for the burglary.

We believe there was sufficient evidence presented to establish that appellant violated the terms of his probation. Police Officer Leath testified that after he was informed by witnesses that Mr. Gregory had been hit and money taken from him by a described suspect, he located appellant and arrested him for the offenses. Appellant objected to this testimony as hearsay. Leath stated that after he advised appellant of his Miranda rights, appellant admitted that he took some money from Mr. Gregory. Appellant’s probation officer testified that when questioned about the alleged robbery, appellant admitted he had taken money from Mr. Gregory but denied hitting the man. Appellant’s objection that this testimony was inadmissible because appellant had not been given his Miranda rights was overruled. Appellant testified in his own behalf and admitted taking some money from Mr. Gregory.

Although we agree that a revocation of probation should not be based solely on hearsay evidence, there was sufficient corroborative non-hearsay evidence herein to support the revocation. White v. State, 301 So.2d 464 (Fla. 1st DCA 1974); Brown v. State, 338 So.2d 573 (Fla. 2d DCA 1976); Couch v. State, 341 So.2d 285 (Fla. 2d DCA 1977); Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977).

We do not believe the failure of a probation officer to advise probationer of his Miranda rights prior to his admission of a violation of his probation renders the admission inadmissible at the revocation hearing. Jones v. State, 321 So.2d 574 (Fla. 2d DCA 1975). Although State v. Heath, 343 So.2d 13 (Fla.1977), holds that a probationer retains his privilege against self-incrimination in regard to specific conduct and circumstances concerning a separate criminal offense, we are unaware of any decisions finding the exclusionary rule is applicable in a revocation hearing. Moreover, appellant does not deny his admission nor does he attack its voluntariness. United States v. Johnson, 455 F.2d 932 (5th Cir. 1972), cert. den., 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972). In addition, the testimony of the probation officer was only cumulative to that of Police Officer Leath.

There was sufficient competent evidence to find a violation of probation. At the close of the revocation hearing, the court announced the evidence supported a finding that appellant had violated his probation by the commission of a larceny of William Gregory, a necessarily included offense of the offense alleged, robbery. The written order of revocation recites that both alleged violations had been established. Since the order enlarged the announced findings, the order of revocation is REMANDED for corrections to conform with the findings announced at the hearing.

Furthermore, the sentences are erroneous in that appellant was not given credit for the jail time previously served as a condition of probation. State v. Jones, 327 So.2d 18 (Fla.1976). The case is thus remanded for proper sentencing. Appellant need not be present for this purpose.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: OTT, Judge.

text:
    GENERAL TELEPHONE COMPANY OF FLORIDA, Petitioner, v. BOARD OF REVIEW, etc., Respondent.
    No. 77-1998.
    District Court of Appeal of Florida, Second District.
    April 7, 1978.

      James F. Bell, Gen. Counsel, Tampa, for petitioner.
    James R. Parks and Norman A. Blessing, Tallahassee, for respondent Bd. of Review.
   OTT, Judge.

An unemployment compensation appeals referee ruled that Mrs. Linda Dunn, an employee of General Telephone Company, was not entitled to unemployment compensation benefits. On appeal the Board of Review reversed. General Telephone now seeks review of the board’s decision in this court, and we grant the writ of certiorari.

On October 5, 1976, Mrs. Dunn filed an application for unemployment compensation. Subsequently, a claims examiner denied the application on the ground that Mrs. Dunn was not unemployed. She then appealed.

The evidence presented to the appeals referee was not in conflict. It demonstrated that Mrs. Dunn applied for maternity leave at the end of the sixth month of her pregnancy and General Telephone granted this leave of absence. Mrs. Dunn could have continued working throughout her pregnancy and could, if she wished, have returned to work after the baby was born.

On the basis of the evidence before him, the appeals referee entered an order affirming the decision of the claims examiner. Mrs. Dunn again appealed and the Board of Review reversed the appeals referee’s decision. General Telephone then filed its petition for certiorari. We now entertain that petition pursuant to Section 443.07(4)(e), Florida Statutes (1975).

On petition for certiorari from the Board of Review, it is the duty of this court, as it was of the Board of Review, to determine whether there was competent substantial evidence to support the decision of the appeals referee. State Department of Commerce v. Dietz, 349 So.2d 1226 (Fla.2d DCA 1977). In this case, the appeals referee concluded that Mrs. Dunn was not entitled to benefits and so it is necessary to examine the evidence to see if his conclusion was correct.

A claimant is not entitled to benefits when that claimant voluntarily leaves her work for reasons not attributable to her employer. Section 443.06(1), Florida Statutes (1975). Therefore, we must first determine if Mrs. Dunn was unemployed. For the purposes of Florida’s unemployment compensation law a leave of absence is equal to unemployment because a person is unemployed when she performs no services and receives no wages. Section 443.-03(12), Florida Statutes (1975). Accordingly, since Mrs. Dunn was on a leave of absence we find that she was unemployed.

The second part of our analysis, then, requires us to determine whether Mrs. Dunn was unemployed because she left her work voluntarily without good cause attributable to her employer. The record clearly shows that she left voluntarily. She asked for the leave of absence and company policy would have allowed her to continue work despite the pregnancy. She also left without good cause. Section 443.06(1), Florida Statutes (1975) defines good cause as “only such cause as is attributable to the employer or consists of illness or disability of the individual, other than pregnancy.” (Emphasis added.) Thus, since Mrs. Dunn left because of her pregnancy she did not have good cause.

From what we have said, it is clear that Mrs. Dunn was not entitled to benefits and so the appeals referee’s decision was correct. We note that the referee reached this decision for the wrong reason, namely that the claimant was not unemployed. However, this fact does not alter our conclusion because the Board of Review should always affirm when the evidence supports the result which the appeals referee has reached.

Accordingly, we quash the order of the Board of Review and remand the case for proceedings consistent with this opinion.

HOBSON, Acting C. J., and SCHEB, J., concur.


author: DIXON, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Bernard HAMILTON, a/k/a Larry Knight.
    No. 60630.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 10, 1978.

      Frederic L. Miller, Peters, Ward & Miller, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Bernard Hamilton was charged by bill of information with simple burglary in violation of R.S. 14:62. He was tried by jury and convicted by a ten-two verdict on March 28, 1977. Defendant was sentenced to serve eighteen years at hard labor as a third felony offender. He appeals his conviction and sentence, relying upon five assignments of error.

Due to our finding reversible error in Assignment No. 3, we pretermit any comment on Assignments Nos. 1 and 2. However, should defendant be retried and convicted, the possibility may arise that the same problems raised in Assignments Nos. 4 and 5 (regarding a recidivist hearing for the purpose of enhanced sentencing) may be at issue. Therefore, those assignments are also discussed.

Assignment of Error No. 3

In this assignment defendant contends that the trial court erred in refusing to sustain his objection to prejudicial remarks of the prosecutor which exceeded the proper scope of closing argument.

Defendant based his defense on an attack on the credibility of three prosecution witnesses whose testimony was essential to establish defendant’s involvement in the crime. Capitalizing on the fact that one witness stated at a preliminary examination that she could not remember certain details following the burglary, but at trial more fully testified on those details, and that the three witnesses’ versions of the events subsequent to the burglary varied, the defense attorney on three occasions during closing argument accused the district attorney and detectives of coaching the witnesses. For example, near the end of his closing remarks he stated:

“ . . . Now the D.A. has coached his witnesses up through two stages, but he let his foot slip on the second one and they [the three prosecution witnesses] cannot get their stories together for the final important stage to give any semblance of reasonableness to this crime.

Responding to these arguments on rebuttal the prosecutor stated:

“MR. GLASSELL: May it please the Court, ladies and gentlemen of the jury, I begin to wonder who is on trial here today Bernard Hamilton or me and the detectives that worked the case for the Sheriff’s office. It is a favorite trick of defense counsel many times during a criminal trial to try to put everybody in the Courtroom on trial but the man sitting beside him. Apparently that is what has happened today, everybody, particularly me is on trial for bringing this case before you. I submit to you that if I didn’t think these witnesses were telling the truth, that if I didn’t have anything in my file to substantiate what they are telling you today we wouldn’t be here today, I wouldn’t be wasting my time trying this
MR. MILLER: Objection, Your Honor, I believe he is testifying at this point.
MR. GLASSELL: My integrity has been attacked by Mr. Miller in connection with this case.
THE COURT: Objection is overruled.
MR. GLASSELL: I wouldn’t be spending my time here today nor your time nor the Court’s time if I didn’t believe in my case. I don’t believe in bringing cases to juries that I don’t believe in my witnesses and believe myself that they are telling the truth. I check out these stories by these witnesses, I check them out independently of what they tell the officers and independently of what they tell the deputies back on December 7th. I try to_ when I have cases like this involving lay witnesses, I try to independently corroborate their testimony to see if they are telling the truth before I bring a case to trial and I resent the attack on me coaching the witnesses. Certainly I coach_ I don’t coach the witnesses, I talk to them about the case. I discuss the case with them to help them refresh their memory but I rely on them to tell me about it. I say, well tell me what happened. I don’t coach the witnesses, I don’t try to put words in their mouths.” (Emphasis added).

The prosecutor’s remarks clearly went beyond the proper scope of closing argument which should be confined to “evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” C.Cr.P. 774. His statements which emphasized to the jury that he would not prosecute if he did not think he had a case could be interpreted as the prosecutor’s expression of his personal opinion of the guilt of defendant. The prosecutor in Louisiana is prohibited from making such statements partly based on the statutory prohibition of C.Cr.P. 774, above, but also for reasons of fairness. State v. Kaufman, 304 So.2d 300 (La.1974), and authorities cited therein. In reviewing the policy reasons for the foregoing rule in State v. Kaufman, supra, we quoted the following from 5 Wharton’s Criminal Law and Procedure, § 2083, at page 245 (Anderson ed., 1967):

“ . . . ‘It has sometimes been stated, in support of the foregoing rules or holdings, that the assertion of the prosecutor’s belief, opinion, or knowledge constitutes an invasion of the province of the jury and a usurpation of its function to declare the guilt or innocence of the accused. This is, however, a merely technical or theoretical argument. The more practical and substantial reasons or grounds of objection usually assigned are that the statement complained of injects into the case irrelevant and inadmissible matter or a fact not legally produced in evidence, and adds to the probative force of the testimony adduced upon the trial the weight of the prosecutor’s personal influence, knowledge, professional opinion, or the influence of his official position.’ (Italics ours.)” 304 So.2d at 307-OS.

We, however, further noted that:

“ . . . the expression of such an opinion by the prosecutor is often held to be nonreversible, if it is apparent to the jury that it is expressly or impliedly only based on the evidence presented to the jury rather than on personal knowledge of facts outside the record.” (Emphasis added). 304 So.2d at 307.

In the instant case the prosecutor not only expressed his personal opinion of defendant’s guilt, but also implied that he was aware of facts outside of the evidence introduced at trial to bolster that opinion. The prosecutor’s remarks were designed to influence the jury, and had the effect of adding undisclosed information in the prosecutor’s file to the testimony laid before the jury. It was the last utterance the jury heard from either counsel before retiring for deliberations in a case in which the essential evidence against defendant was the testimony of these three witnesses. Such objectionable remarks prejudiced the rights of the accused and warrant a reversal of defendant’s conviction. C.Cr.P. 921.

The State argues that since the defendant did not request the court to admonish the jury or declare a mistrial, C.Cr.P. 770, 771, he is barred from asserting that error before this court. However, a timely objection was made by defense counsel wherein he properly stated the grounds for his objection, in accordance with C.Cr.P. 841. Defendant is not barred from asserting the error in the trial judge’s ruling at this time by his failure to request an admonition or move for a mistrial. Once the objection has been made and overruled, clearly the court would additionally refuse any request for admonition or mistrial. As we stated in State v. Cascio, 219 La. 819, 54 So.2d 95 (1951), to require defendant to make such a useless motion would:

“ . . . require that the defendant do a vain thing for it seems to be utterly futile to request the judge to instruct the jury to disregard an, allegedly improper statement when he has already approved it by his action in overruling a timely objection.” 219 La. at 827, 54 So.2d at 98.

State v. Cascio, supra, preceded the enactment of the Code of Criminal Procedure by Louisiana Acts 1966, No. 310, with its new articles 770 and 771. We conclude that although defendant cannot allege error for the trial court’s failure to admonish the jury or declare a mistrial when no motion for same has been made, failure to so move after the defense objection is overruled does not preclude review of the trial judge’s failure to sustain a properly made objection. Admonition and mistrial, while providing more significant relief to a defendant for prejudicial remarks by a court official, are not the only vehicles for obtaining relief. By properly objecting, defendant can cause the prosecutor to refrain from further improper argument. Had defendant’s objection been sustained,, he would have no cause for complaint, and the State could properly argue that we would have nothing to review unless defendant had moved for an admonition or mistrial.

The State cites several opinions of this court to support its contention that both an objection and motion for admonition and/or mistrial must be lodged.

In State v. Passman, 345 So.2d 874, 892 (La.1977), we held that the trial judge did not err in failing to admonish the jury to disregard an improper comment made by the State’s attorney in rebuttal argument when defense counsel had not requested an admonition or a mistrial. The remark objected to was a reference to testimony of a State witness which had not been referred to in defense counsel’s closing argument. Such a remark, though beyond the proper scope of rebuttal, C.Cr.P. 774, would not create the kind of prejudice to defendant as is present in the instant case. Furthermore, once defense counsel objected, the prosecutor dropped that line of argument which had the same effect as if the court had sustained the objection. Thus, defendant got all the relief to which he was entitled.

In State v. Smith, 339 So.2d 829, 833-34 (La.1976), defendant objected to only one of several allegedly prejudicial remarks made by the prosecutor in closing argument. We held that where defense counsel failed to timely request an admonition or move for mistrial, he waived the alleged error. However, we reviewed the one error that was objected to and found that the court took proper corrective measures in instructing the prosecutor not to continue his comments on penalties. Since the State was prevented from completing its statement, we found that no admonition would have been required had it been requested.

The defendant in State v. Clark, 332 So.2d 236, 237 (La.1976), had neither moved for an admonition or mistrial nor objected to the alleged improper statements, as was done in the instant case. Thus, we stated:

“ . . By failing to seek corrective measures or make a timely objection, defendant waived his right to attack the judgment of conviction on grounds of error. . . . ” (Emphasis added).

And finally, in State v. Lee, 340 So.2d 180, 186 (La.1976), we held that an impermissible remark made by the prosecutor in rebuttal argument did not constitute reversible error when we found it would not have influenced the jury or contributed to their verdict. Concededly, a remark we made in that case may contribute to a misunderstanding that in all cases where a prejudicial statement is made by a court official, the defendant must not only object but must also move for an admonition and/or mistrial. That was not the intended holding in State v. Lee.

The only objection to the rebuttal argument voiced in State v. Lee was: “This has nothing to do with rebuttal — objection.” That objection,'overruled by the trial judge, was made when the prosecution urged the jurors to think of their aged mothers or grandmothers before finding the accused rapist not guilty. The argument before this court was that the objectionable statement was an appeal to prejudice in violation of C.Cr.P. 774. In the case now before us, the court was made aware of the basis of the objection, and, when overruled, it is not required that defendant persist and move for a mistrial or admonition on the same grounds. As noted in State v. Accar-do, supra, it might well further damage the defendant’s chances before the jury to require counsel to press for an admonition which would further emphasize to the jury that the prosecutor vouched for his witnesses.

State v. Lee comes close to being a “magic words” case, and, to the extent that it suggests that the defendant must request a mistrial or admonition before this court will consider any improper remark of the judge, district attorney or court official, it is disapproved.

The State makes the further argument that the prosecutor’s remarks were provoked by the defense counsel’s closing argument, quoting the following language from State v. Lockett, 332 So.2d 443, 448 (La.1976):

“ . . . when the comment is provoked by opposing counsel, the remarks will not serve to upset a conviction. State v. Cascio, 219 La. 819, 54 So.2d 95 (1951); State v. Poe, 214 La. 606, 38 So.2d 359 (1949); State v. Borde, 209 La. 905, 25 So.2d 736 (1946). ...”

We, however, cannot agree that if defendant’s counsel makes improper remarks in closing argument that the prosecutor is given free reign to make any statements in retaliation to the prejudice of the accused. The prosecutor could have vindicated himself before the jury by denying the charges of coaching the witnesses without expressing his personal opinion of defendant’s guilt, and could have reemphasized the veracity of his witnesses by pointing out the facts which corroborated their stories. He went beyond what was necessary to respond to the defense attorney’s argument.

The remarks made in State v. Poe, supra, State v. Borde, supra, and State v. Cascio, supra, do not stand for the proposition that any remark made by the prosecutor is justified when provoked by opposing counsel, as intimated in the State’s brief. In Poe, the district attorney’s retaliatory statement was not considered prejudicial since the judge admonished the jury to disregard it, and in Borde, the prosecutor’s statement that had he not believed defendant to be guilty he would not have brought him to trial was directly in response to defense counsel’s statement that the prosecutor did not believe in his case. A similar statement by the prosecutor in Cascio was responsive to defense counsel’s accusation that the assistant prosecutor enrolled in the prosecution to ensure a good civil suit against the defendant where he was representing the plaintiff.

Hence, we hold that the prosecutor’s remarks were improper closing argument expressing his personal opinion of defendant’s guilt, indicating his knowledge of facts outside the evidence adduced at trial. Due to defendant’s timely objection which was overruled, we may review the error on appeal. Further, we hold that the prosecutor was not justified in making the remarks even though provoked by defense counsel. Therefore, the failure of the trial judge to sustain the objection constituted reversible error.

Assignments of Error Nos. 4 and 5

By these assignments, defendant alleges that the lower court erred in ruling that he is a third felony offender and in imposing an enhanced sentence commensurate with that ruling.

At the habitual offender hearing, the State introduced evidence to show that the defendant had been previously convicted twice of crimes that, if committed in Louisiana, would have been felonies. See .R.S. 15:529.1(A). The State’s exhibits included: (1) S — 1—certified copies of penitentiary records from the Department of Corrections of the State of California showing that a Bernard Lee Hamilton had been convicted on April 18, 1973 of second degree burglary under California Penal Code, § 459 (a felony if committed in Louisiana) in Case No. 28167; contained therein were photographs and fingerprints of the convicted man; (2) S-2 — certified copies of records of the Superior Court of the State of California for the County of San Diego showing conviction for the above mentioned offense; and (3) S-3 — certified copies of the records of the Superior Court of the State of California for the County of San Diego showing that a Bernard Lee Hamilton had been convicted on July 25, 1972 of forgery in violation of California Penal Code, § 470 (a felony if committed in Louisiana) in Case No. 26357.

In Assignment of Error No. 4, defendant argues that a determination by a California criminal court that he was not a habitual offender after defendant’s second felony conviction is binding upon this court under the full faith and credit clause of the United States Constitution. Thus, he argues, although the second degree burglary conviction may be relied upon as a prior conviction for finding the defendant to be a second felony offender, the 1972 forgery conviction cannot be used to enhance defendant’s penalty as a third offender.

Included in State Exhibits S-l and S-2 were copies of an abstract of judgment of the second degree burglary conviction, signed by the California trial judge, which read:

“Defendant was not adjudged an habitual criminal within the meaning of subdivision _of Section 644 of the Penal Code and the defendant is not an habitual criminal in accordance with the provisions of subdivision (c) of that section.”

Section 644 of the California Penal Code differs from our habitual offender statute, R.S. 15:529.1, in that the former only allows enhanced penalties when offenders have been convicted more than once of offenses specifically enumerated in the statute. The latter, rather, applies to enhance punishment when there has been a prior conviction of any felony. The crime of forgery does not appear in the enumerated list found in § 644. Therefore, it is reasonable to assume that the ruling in the California court’s abstract of judgment, above, reflects a proper reading of § 644; under California law defendant could not have been considered a habitual criminal upon his conviction of second degree burglary based upon a prior conviction on a charge of forgery.

We conclude that this court is not bound by the California court’s prior adjudication that defendant was not a habitual criminal upon conviction of his second felony. R.S. 15:529.1(B) provides, in pertinent part:

“It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as, and adjudged to be, a third offender . . . Provided, however, that the offender shall be deemed . a third offender under this Section only if the crime resulting in the third conviction shall have been committed after his conviction for a crime which in fact caused him to be a second offender, whether or not he was adjudged to be a second offender in the prior instance

We rely not only upon the language of this section which outlines the legislature’s express intention, but also on our State’s strong interest in protecting the public from an individual who has shown, through repeated criminal behavior, that his adjustment outside an institution is highly improbable. Recidivism is an area of peculiar importance and traditional concern to the state which is charged with protection of the public and rehabilitation of the criminal who has committed an offense within its jurisdiction.

Thus, the trial court correctly considered the two prior California convictions in spite of a California court’s ruling that defendant was not a habitual offender after commission of his second offense.

In Assignment of Error No. 5, defendant argues that, even if this court determines that the California court’s adjudication that defendant was not a habitual offender is not entitled to full faith and credit, there was insufficient proof to show that defendant was the same Bernard Lee Hamilton who was convicted in 1972 of forgery in California. Therefore, he contends, the forgery conviction cannot be relied upon to find defendant to be a third offender; at most, he argues, he can only be adjudged a second offender.

Defendant points to the fact that S-3, the records of the forgery conviction, do not contain a photograph of the convicted person, fingerprints, or a statement by the convicting court of the date and time of sentencing, the length of time imprisoned, or the date of discharge.

As we recently stated in City of Monroe v. French, 345 So.2d 23, 24 (La.1977):

“In Louisiana, proof that a person of the same name has been previously convicted does not constitute prima facie evidence that the two persons are the same. State v. Curtis, 338 So.2d 662 (La.1976); State v. Curtis, 319 So.2d 434 (La.1975). The state must additionally offer proof that the accused is the same person as the defendant previously convicted. State v. Curtis, cited above, at 338 So.2d 664. See Also Annotation, 11 A.L.R.2d 870, Section 9 (1950) and Later Case Service (1971).”

Although R.S. 15:529.1(F) provides that a prima facie showing of defendant’s prior conviction may be made by certificates of the chief officer of the penitentiary where the person was imprisoned along with the imprisoned person’s name, photograph, fingerprints, a statement of the convicting court, and the date and time of sentence, length of time imprisoned, and date of discharge, this is not the exclusive method of proving that defendant is a habitual offender. That may be established by other competent evidence. State v. Barrow, 352 So.2d 635 (La.1977); State v. Jones, 332 So.2d 461 (La.1976); State v. Montana, 332 So.2d 248 (La.1976).

Defendant does not contest the identification made of defendant as the Bernard Lee Hamilton who was convicted in California of second degree burglary in 1973. The records of that conviction contained photographs of the convicted man and fingerprints which were matched with those of defendant by a fingerprint sample taken in open court. State Exhibit S-2 included the bill of information on the second degree burglary charge which made reference to a prior conviction of the defendant for forgery in San Diego County, California on July 25, 1972. S-2 also included an order for a change of defendant’s plea of not guilty on the burglary charge to guilty which, in explaining the plea bargaining arrangement made with the district attorney, stated that the “D.A. agrees that sentence in this case may run concurrent with any imposed in CR-26357 . . . ” CR-26357 is the case number of the forgery conviction of a Bernard Lee Hamilton found in State Exhibit S-3.

We find the foregoing references in S-2 to a prior felony conviction for forgery make a sufficient connection to the defendant to prove that he is the same Bernard Lee Hamilton who was convicted of forgery in 1972, as shown in State Exhibit S-3. Therefore, there was no error in the trial judge’s reliance on two prior California felony convictions to adjudge defendant a third offender under R.S. 15:529.1.

These assignments are without merit.

For the reasons assigned, we reverse the conviction and sentence, and we remand this case for a new trial in accordance with law.

SANDERS, C. J., dissents with written reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, Chief Justice

(dissenting).

The majority reverses the conviction, because the prosecutor in closing argument allegedly expressed “his personal view of defendant’s guilt, indicating his knowledge of facts outside the evidence adduced at trial.”

I agree that the remarks of the prosecutor under other circumstances could constitute reversible error. In my opinion, however, there is no reversible error under the circumstances of this case.

First, the defense objected only on the ground, “I believe he is testifying.” In this Court, the argument is changed to a complaint that the prosecutor expressed a personal opinion that the defendant was guilty. It is well settled that this Court will not reverse on an objection not made in the trial court. See State v. Marks, La., 337 So.2d 1177 (1976); State v. Powell, La., 325 So.2d 791 (1976).

Second, the defense requested neither an admonition nor mistrial in the lower court. See State v. Passman, La., 345 So.2d 874 (1977); State v. Lee, La., 340 So.2d 180 (1976).

Finally, on the merits, the defense opened the door to such a response by argument that the account of the crime by the State’s witnesses had been fabricated and resulted from the Assistant District Attorney’s coaching them. For example, the defense charged that “you have been subjected to a story made up out of the whole cloth . . ” (Tr. II, p. 165, line 10). He also charged repeatedly that the Assistant District Attorney had coached the witnesses, implying that he had induced false testimony. (Tr. II, p. 156, line 20; p. 160, line 6; p. 165, line 2). Defense counsel also alluded to the State’s witnesses as “the second finger man,” “the State’s number one hired gun,” the “second hired gun,” and “the testimony of the three stooges.”

This argument, of course, justified a response by the prosecutor. In view of the serious charges in the defense argument, I am not prepared to say that the response exceeded its proper bounds.

For the reasons assigned, I respectfully dissent.

      . Compare these assurances by the prosecution with those of State v. Accardo, 129 La. 666, 669, 56 So. 631, 632 (1911):
      “ ‘ . . . I don’t want any man convicted unless the evidence satisfied me that he is guilty. I don’t have to try him unless I am satisfied he is guilty. When I examine into the facts of the case, and I am not satisfied from the evidence that the man is guilty, I don’t have to try him. I only try cases, gentlemen of the jury, and it is only proper for me to try cases when I am satisfied from the evidence that the accused is guilty.’
      “The learned district attorney has here practically advised the jury that he has made a separate and independent investigation of the case in his official capacity, and found the accused guilty. Upon what evidence this ex parte investigation of the case was based, whether upon the same evidence as that produced before the jury, or also upon other evidence not produced, or, perhaps, not admissible, before the jury, the learned district attorney does not say. Manifestly, he could not have been allowed to go upon the witness stand and throw into the scale against the accused the fact of his having made this investigation and reached the said conclusion of guilt — his own sense of justice would revolt at such a proceeding; and yet what practical difference is there between his testifying to such an investigation and of its result as a witness on the stand, and his bringing it to the attention of the jury by an un-sworn statement made to them in his official capacity; especially in the impressive manner adopted in this case — driving the fact home to the breasts of the jurors by an elaborate protestation of impartiality and disinterestedness. The warning to the jurors not to regard, or be influenced by, the fact of such ex parte impartial investigation having been made, and having resulted in the conviction of the accused, very far from curing the situation, aggravates it, as being calculated to throw the jurors off their guard and expose them to be all the more easily influenced. If the learned district attorney did not expect this statement to be regarded and to influence the jury, why did he make it?”

      . “ . . . State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964); 2 Marr’s Criminal Jurisprudence of Louisiana, Section 664 (1923); 5 Wharton’s Criminal Law and Procedure, Section 2083 (Anderson ed., 1967); Annotation, 50 A.L.R.2d 766 (1968). ...”

      . In addition, our statute ensures that the punishment is made to fit the criminal in that the trial judge is given discretion to impose a sentence within a specified range. R.S. 15:529.-1(A)(2) provides:
      “If the third felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then the person shall be sentenced to imprisonment for any term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.”
      Defendant was sentenced to the maximum possible sentence under this provision, eighteen years.
      This is to be compared with California’s § 644 which mandates an enhanced penalty of life imprisonment (except where the crime for which the defendant was most recently convicted was punishable by death, § 644(d)) unless the court exercises the discretion it has in exceptional cases to rule that a defendant is not a habitual criminal and thus not subject to any enhanced punishment. § 644(c). (Section 644 of the California Penal Code has recently been repealed. California Stats.1976, C. 1139, p. -, § 261.5, effective July 1, 1977).


author: SANDERS, Chief Justice.

text:
    Helen McMILLAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al. Thomas HUTCHINSON v. STATE FARM INSURANCE COMPANY.
    Nos. 60689 and 60723.
    Supreme Court of Louisiana.
    March 6, 1978.

      Morrison & Higgins, Timothy R. Higgins, Hammond, for plaintiff-applicant in No. 60,723 and for plaintiff-respondent in No. 60,689.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-respondent in Nos. 60,689 and 60,-723.
    Anthony J. Clesi, Jr., Lane & Clesi, Baton Rouge, for defendants-applicants in No. 60,-689 and for defendant-respondent in No. 60,723.
   SANDERS, Chief Justice.

These suits resulted from an automobile accident which occurred at an intersection in Springfield, Louisiana. Plaintiff, McMillan, brought suit against her own insurer, State Farm Mutual Insurance Company, under the uninsured motorist provisions of her policy. Hutchinson’s parked vehicle was struck by the McMillan vehicle as a result of the impact of the collision with the Oliphant vehicle. Hutchinson brought suit for damages against Mrs. Oliphant, Mrs. McMillan, and her liability insurer, State Farm. In separate judgments, the district court found in favor of McMillan, against State Farm, and awarded Hutchinson damages but only against Oliphant.

State Farm appealed, urging the defense of contributory negligence on McMillan’s part and, alternatively, a reduction in the award to her. Hutchinson appealed, alleging that the trial judge erred in failing to find liability on Mrs. McMillan’s part.

In separate judgments, which partially reversed the district court, the Court of Appeal: (1) found McMillan guilty of contributory negligence; (2) set aside the lower court’s judgment insofar as it cast State Farm as the uninsured motorist insurer of McMillan; and (3) awarded Hutchinson damages against Oliphant, McMillan, and State Farm, in solido. 349 So.2d 949; 349 So.2d 953 (1977).

We granted writs in order to review the liability of the parties. La., 350 So.2d 1216 (1977).

Louisiana Revised Statute 32:234A(2), which controls the situation before us, provides:

“A. Whenever an illuminated flashing red or yellow signal is used in a traffic sign or signal, it shall require obedience by vehicular traffic as follows:
u * * *
“(2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL) — When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.
it * * * >>

In the present case, the trial court found McMillan free from negligence for the following reasons:

“There is no question of the negligence of the driver of the Oliphant vehicle, which ran the stop sign and the flashing red light. Her statement that her brakes failed is completely unsubstantiated. The real issue is whether Mrs. McMillan, who was proceeding through the flashing yellow light, was also negligent — thereby making her jointly liable with Mrs. Oli-phant for the injuries suffered by the plaintiff, Thomas Hutchinson, who was sitting in a parked car, as well as barring her from recovery under her uninsured motorist claim.
“It is the opinion of this Court that Mrs. McMillan was not negligent — that this case is factually distinguishable from the line of cases holding the motorist approaching a flashing yellow light to be negligent. Mrs. McMillan approached the intersection with caution at a slow speed. Both she and her sister, Mrs. [Sturdivant] observed the approaching Oliphant vehicle from some distance, and it appeared to be slowing for the stop sign and the flashing red light as it should have, and presented no danger. It was only after the McMillan vehicle entered the intersection that it suddenly became noticeable that the Oliphant vehicle was not stopping — but even appeared to be accelerating as if the driver had hit the accelerator instead of the brake. That the McMillan vehicle had preempted the intersection is clear from the testimony and it is substantiated by the photographs showing the point of impact to the rear of the left door in the left quarter panel •of the McMillan car.” [R. pp. 44-45.]

The Court of Appeal found Mrs. McMillan’s undisputed deceleration before entering the intersection after observing the approach of the Oliphant car and erroneously concluding that it would stop in compliance with the flashing red light and stop sign did not constitute the “caution” required by LSA-R.S. 32:234A(2). We think that the conclusion is in error. In our opinion, her conduct satisfies the requirement of the statute. See Haire v. Allstate Insurance Company, La.App., 224 So.2d 531 (1969). Hence, we approve the holding of the trial judge.

The Court of Appeal did not reach the issue of quantum. The damage award appears to be in controversy. Hence, in accordance with our usual practice, we will remand the case to the Court of Appeal to pass on that issue.

For the reasons assigned, the judgments of the Court of Appeal are reversed, and the judgments of the district court as to liability are reinstated and made the judgment of this Court. The case is remanded to the Court of Appeal to review the damage award in favor of Helen McMillan.


author: DENNIS, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. John T. MARTIN.
    No. 60832.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.

      Raymond A. McGuire, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, John T. Martin, was convicted by a jury of attempted armed robbery, La. R.S. 14:27 and 14:64, subsequently adjudged an habitual offender, La.R.S. 15:529.1, and sentenced to forty years at hard labor. He appealed and relies on four assignments of error for reversal of his conviction.

“Give me your. . . . ” were the only words uttered by defendant before he was seized by two policemen as he held a gun on a third plain-clothes officer in a shopping center parking lot. In assignment number one defendant contends that the trial court erred in failing to grant his motion for a new trial. He argues that because he was interrupted in mid-sentence there was no evidence of his specific intent to commit a theft of anything of value, an essential element of the crime of attempted armed robbery. We disagree. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. See, La.R.S. 14:27 and 14:64. Taken in context defendant’s words and deed excluded every reasonable hypothesis of innocence. Accordingly, defendant’s motion did not present sufficient grounds for a new trial. La.C. Cr.P. art. 851.

Assignment of Error No. 2 was taken when the court curtailed defense counsel’s cross-examination of a police witness on the subject of his acquaintance and association with his fellow arresting officers. After the witness responded to a series of inquiries relating to how well he knew them, and how long he had worked with them, the State interposed an objection to the relevancy of his further testimony in this vein. Upon being questioned by the court, defense counsel stated that the evidence was relevant to show bias or prejudice. When the purpose is to show that in the special case on trial the witness is biased, it is competent to question him as to any particular fact showing or tending to show such bias. La.R.S. 15:492. However, the cross-examination in the instant case did not appear to bear on any particular fact showing or tending to show bias, and defense counsel failed to point out any such fact in response to the judge’s query. We conclude, therefore, that the exclusion of the evidence as irrelevant to the purpose of showing bias or prejudice was not erroneous.

During his direct examination of the defendant, defense counsel sought to introduce a letter written to him by the defendant relating the events preceding his arrest. A prosecution objection was sustained on the ground that the letter constituted hearsay. The general rule is that hearsay evidence is inadmissible, La.R.S. 15:434 and 15:463, but Louisiana has no statutory definition of hearsay.

We have on occasion indicated that an out-of-court assertion by a testifying witness is not hearsay, although it does not appear that this notion was actually crucial to any of our decisions. In other cases, this Court has stated the definition of hearsay in language which would include an out-of-court assertion of a testifying witness. After warning that any one-sentence definition is an over-simplification, Professor McCormick proposes the following:

“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” C. McCormick, Evidence, § 246 (Cleary ed. 1972).

Upon reflection, we conclude that Professor McCormick’s formulation is preferable as a brief definition' of hearsay. Often an erroneous ruling admitting an unsworn out-of-court assertion by a testifying witness will not present grounds for reversal, but the hearsay character of a proffered out-of-court assertion is not altered by the fact that the statement was made by a person who appears in court as a witness. In the instant case the letter proffered by the defense was written evidence of a statement made out-of-court, offered to show the truth of the matter asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Accordingly, the letter was inadmissible hearsay, and it was correctly excluded by the trial court.

Assignment of error number four was reserved when the court overruled the defendant’s objection to the introduction of certain documents during the multiple offender hearing. The documents consisted of an arrest report, and a fingerprint card from a neighboring sheriff’s office. Defendant contends that the documents were not admissible because they were not properly authenticated. and because they were hearsay.

The rule of authentication evidencing the genuineness of a particular document has always to be satisfied; for an official document may belong to a class clearly admissible, but still the document actually offered must be authenticated as genuinely that which it purports to be. 5 J. Wigmore, Evidence, §§ 1637, 2129 (1974). In the instant case the documents were stamped “a true copy of the original on file in this office” and signed by an individual identifying himself as “Deputy Sheriff, Jefferson Parish.” The State contends that the documents were authenticated in accordance with La.R.S. 15:457, which provides:

“A copy of a document, certified to by the officer who is the legal custodian of the same is equivalent to the original in authenticity; but the certificate of an officer to any matter not under the general powers vested in him is no evidence at all.”

This statute is apparently a codification of the general principle that the lawful custodian of a public record has, by implication of his office, and without express order, an authority to certify copies. See, Church v. Hubbart, 6 U.S. (2 Cranch) 187, 236, 2 L.Ed. 249 (1804); United States v. Percheman, 32 U.S. (7 Pet.) 51, 86, 8 L.Ed. 604 (1883); 5 J. Wigmore, Evidence, § 1677 (1974); C. McCormick, Evidence, § 320 (Cleary ed. 1972).

Nevertheless, defendant contends that because the certification does not establish that the deputy sheriff was the legal custodian the documents were not authenticated. Ordinarily, he would be correct. The person having the duty of keeping official records and the person certifying copies of them must, on principle, be identical. 5 J. Wigmore, Evidence, § 1633(8) (1974). Although such authority may be delegated when practical necessity dictates, id., it should clearly appear in the certificate that the person certifying the copy has been entrusted with legal custody of the original document by the original official custodian. Cf. State v. Washington, 322 So.2d 185 (La.1975). However, in the case of deputy sheriffs, such delegation has been effected by Article 331 of the Louisiana Code of Civil Procedure which, in pertinent part, provides:

“Except as otherwise provided by law, a deputy sheriff possesses all of the powers and authority granted by law to the sheriff, and may perform any of the duties and exercise any of the functions of the sheriff. * * * ”

Since the documents were certified as being true copies of the originals on file in the sheriff’s office by a deputy sheriff, they were equivalent to the originals in authenticity.

These documents were hearsay evidence, however, and should have been excluded for the same reason that defendant’s letter was not allowed in evidence. The documents contained out-of-court assertions offered to show the truth of matters asserted therein. The State advances no reason why they should be admitted as exceptions to the hearsay rule. The mere fact that the documents were entitled to be regarded as authentic copies of the originals on file in the sheriff’s office does not render them admissible. La.R.S. 15:457 is a rule of authentication and not an exception to the hearsay rule. When the legislature has enacted such exceptions it has done so in express terms. E. g., La.C.Cr.P. art. 105 (coroner’s report and proces verbal of autopsy); La.R.S. 13:3714 (hospital records); La.R.S. 15:529.1 (penitentiary photographs and fingerprint records); cf. Ped.R.Evid. 803(8), 901. This is consistent with the lawmakers’ declarations that hearsay is inadmissible “except as otherwise provided in this code,” La.R.S. 15:434, and that a witness can testify only as to facts within his knowledge “[ejxcept as otherwise provided in this Code.” La.R.S. 15:463. It is also in accord with the notion that it is essential for an exception to the hearsay rule that some circumstantial probability of trustworthiness be found, to take the place of cross-examination so far as may be. 5 J. Wigmore, Evidence, § 1632 (1974). An overbroad exception admitting into evidence all statements on file (with all public officers would have potential conflict with a defendant’s right to confrontation and allow introduction of information derived from untrustworthy sources and through unreliable methods. Compare, Fed.R.Evid. 803(8); C. McCormick, Evidence, § 317 (Cleary ed. 1972).

The trial judge’s per curiam indicates that he overruled defendant’s objections because “the documents in question reflected entries in the ordinary course of business.” In this he fell into error. Before such exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished by one having a business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy. State v. Monroe, 345 So.2d 1185 (1977). The State failed to make such a showing in at least one particular, i. e., that the person who made the record was genuinely unavailable for testimony.

Because these documents were essential to the proof required for a multiple offender conviction, i. e., that there was a prior felony committed and that the defendant is the person who committed it, State v. Dugas, 170 La. 5, 127 So. 345 (1930), the evidence adduced was incompetent to convict defendant as a second offender. The case must be remanded for re-sentencing in accordance with law. State v. Washington, supra.

For the reasons stated, we affirm the defendant’s conviction but reverse the trial court’s adjudication of defendant as an habitual offender and the sentence imposed thereon. The cause is remanded to the trial court for proceedings consistent with the foregoing opinion.

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

MARCUS, J., concurs in part and dissents in part and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction. I dissent from the reversal of the trial judge’s adjudication of defendant as an habitual offender and the sentence imposed thereon.

      . State v. Monroe, 345 So.2d 1185 (La.1977); State v. Launey, 335 So.2d 435 (La.1976); State v. Hayes, 306 So.2d 705 (La.1975); State v. Jacobs, 281 So.2d 713 (La.1973); Southern Scrap Material Co., Ltd. v. Commercial Scrap Materials Corp., 239 La. 958, 120 So.2d 491 (1960).

      . E. g., State v. Johnson, 352 So.2d 1285 (La.1977); State v. Junegain, 324 So.2d 438 (La.1975); State v. Gonzales, 258 La. 103, 245 So.2d 372 (1971).

      . See, State v. Johnson, 352 So.2d 1285 (La.1977); Pugh, Louisiana Evidence Law, 433-434 (1973). Apparently, a growing number of jurisdictions recognize a broad exception to the hearsay rule admitting hearsay declarations if the declarant is present and subject to cross-examination. See, C. McCormick, Evidence, § 251 (Cleary ed. 1972). However, we share the uneasiness manifested by other authorities “lest complete rejection of the orthodox view encourage the practice whereby lawyers would offer in evidence a carefully prepared statement in lieu of testimony, merely tendering the witness to be cross-examined concerning it.” Id., p. 603. Therefore, in criminal cases we reject the position taken by those who would admit prior statements of witnesses in toto. See, Model Code of Evidence Rule 503(b); Uniform Rule of Evidence 63(1). The better view allows only certain prior statements of witnesses thought by circumstances to be free of the danger of abuse, namely, statements of identification, inconsistent statements, and consistent statements where admissible to rebut a charge of “recent fabrication.” McCormick, supra, at p. 603.

      . Although the original assignments were numbered differently, we have used the number given in the State and defense briefs.

      . “[T]he question of the authenticity of official records should not be confused with the ultimate admissibility of such records. It is quite possible for a public record to be perfectly genuine, and yet remain inadmissible for some distinguishable reason, e. g., that it is excluda-ble hearsay.” C. McCormick, Evidence, § 224 (Cleary ed. 1972); Matthews v. United States, 217 F.2d 409 (5th Cir. 1954).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. John Glenn TILLMAN.
    No. 60580.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.

      Douglas P. Wilson, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Patrick J. Fanning, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was arrested by two New Orleans police officers on charges unrelated to this prosecution. The officers searched defendant and found a gun concealed in his pants. Defendant was later charged with the crime of carrying a concealed weapon by a person who has been convicted of simple robbery. La.R.S. 14:95.1. The bill of information recited that defendant’s previous conviction of simple robbery had occurred on April 17, 1973. Following a trial by judge defendant was found guilty as charged and sentenced to serve four years at hard labor and fined $60 court costs or thirty days in parish prison.

During the trial defendant objected to the admissibility of several items of documentary evidence. Because the trial court erred in overruling defendant’s objections, defendant’s conviction and sentence must be reversed and the case remanded.

In an effort to prove that the defendant was the same John Tillman who had been convicted of simple robbery on April 17, 1973, the State introduced the following documentary evidence:

1. Documents executed by the arresting officers: S-2, “rights of arrestee form” and S-3, a “field arrest report.”
2. Documents from the police department archives: S-4, an “arrest register”; S-5, a police department “disposition report;” S-6 an FBI rap sheet.
3. Document from the district attorney’s office: S-7, a closed out assistant district attorney’s investigative and prosecution file.
4. Document from the clerk of court’s office: S-8, a bill of information charging the defendant with the commission of an armed robbery on December 10, 1973.

Defendant timely objected to the authenticity and admissibility of this evidence.

Of the exhibits only two, S-5 and S-7, tend to show that a John Tillman was convicted of the crime of simple robbery on April 17, 1973. The other exhibits deal with matters not germane to this issue. Therefore, we pretermit the serious questions raised by the trial court’s failure to exclude them from evidence and devote our discussion to the admissibility of exhibits S-5 and S-7.

Exhibit S-5 was brought to court by a police officer assigned to the police department record room who testified that the document was “a copy of our form which is typed up and prepared when someone is sent off to Angola . . .” The document bears no certificate that it is a true copy of an original. The witness did not testify that it was an original or a genuine copy of one. Furthermore, it was not established that the officer was the legal custodian of the original or that he had been delegated the duties of maintaining lawful custody and certifying copies. On the contrary, he testified that someone other than himself, the archives officer, had “control” of the document. Thus the document was not authenticated for several reasons. It was not “certified to by the officer who is the legal custodian” as required for the authentication of copies, La.R.S. 15:457; nor was it established by the official custodian or by one shown to be his legal delegate that the exhibit was a genuine original document. See, J. Wigmore, Evidence, § 2158 (1974), et seq.; C. McCormick, Evidence, § 224 (Cleary ed. 1972). Although the authority to testify to the authenticity of an original or to certify the authenticity of a copy may be delegated when practical necessity dictates, it should clearly appear in evidence that the person authenticating an original by custody or certifying a copy has been entrusted with legal custody of the original document by the original official custodian. See, State v. Martin, 356 So.2d 1370 (La.1978); cf. State v. Washington, 322 So.2d 185 (La.1975). Therefore, exhibit S-5 was not authenticated and was erroneously admitted into evidence. See, State v. Martin, supra.

Exhibit S-7, a closed out district attorney’s file, was brought to court by a police officer assigned to the district attorney as an investigator. He testified that he had retrieved the exhibit from the district attorney’s closed file section. During his testimony the officer described several items which he removed from the file. None of these was related to the defendant’s alleged simple robbery conviction of April 17, 1973. However, the file was marked “Tillman, John” and one of the handwritten notations appearing on the outside cover read as follows: “4/17/73 P.G. 14:65 — Sentence—Refer to Probation for Presentence/6/7/73; Sentence — 3 yrs. L.S.P. c/time served”. The witness testified that the file had been closed out by someone other than himself and that he did not know whether the information on the file cover was correct. When the State sought to introduce the exhibit defense counsel objected on the grounds that the handwritten notation was “self serving” and was not a proper “record” of the defendant’s conviction. In view of the conspicuously objectionable nature of this evidence the grounds stated were sufficient to apprise the judge of the exhibit’s inadmissibility. La.C.Cr.P. art. 841. Although the witness may have implied that the file was a genuine original, it was not established that he was the legal custodian or that he had been delegated the power of official custody or certification. The document contained out-of-court assertions offered to show the truth of the matters asserted therein. Thus the assertions contained in S-7 constituted unauthenticated, hearsay evidence, and no exception has been provided by law for their admission. See, State v. Martin, 356 So.2d 1370 (La.1978).

Defendant moved for an acquittal on the ground that the State failed to prove an essential element of the crime, i. e., that he had been convicted of simple robbery on April 17,1973. Although S-5 and S-7 were improperly admitted into evidence, this Court is presently of the view that these inadmissible items may nevertheless be considered as evidence in determining whether to grant the motion for acquittal. City of Monroe v. French, 345 So.2d 23 (La.1977); State v. Batiste, 327 So.2d 420 (La.1976). If the inadmissible exhibits are considered, there is some evidence to support a finding that defendant had been previously convicted as recited in the bill of information. Therefore, the motion for acquittal was properly denied. However, the erroneous admission of these items requires that defendant be granted a new trial. City of Monroe v. French, supra; State v. Batiste, supra.

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded for further proceedings consistent with this opinion.

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

      . At trial the prosecutor described S-8 as a certified copy of defendant’s conviction and date of birth from the clerk of court’s office. However, our review of the exhibits reveals that S-8 is a bill of information charging defendant with an armed robbery on December 10, 1973.

      . Although I concur for purposes of reaching a just disposition, I am of the opinion that, preferably, the judgment of conviction should be amended to declare that defendant stands adjudged guilty of the crime of carrying a concealed weapon, La.R.S. 14:95 and that the case should only be remanded for resentencing.
      The trial judge found defendant guilty as charged of carrying a concealed weapon by a person who has been convicted of simple robbery. Without the incompetent and inadmissible evidence in exhibits S-5 and S-7 there was insufficient evidence to support rationally a finding beyond a reasonable doubt that defendant had been convicted on April 17, 1973 of simple robbery. In a trial by judge alone the court must render a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the State’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction. La.C.Cr.P. art. 778. Accordingly, the trial judge should have entered a judgment of acquittal on the charge of carrying a concealed weapon by a person who has been convicted of a simple robbery. It does not follow from this, however, that the trial judge should have found the defendant not guilty of all charges. Carrying a concealed weapon, La. R.S. 14:95, is a lesser and included grade of the offense charged. See, La.R.S. 14:95.1. Guilty of carrying a concealed weapon, therefore, was a responsive verdict, La.C.Cr.P. arts. 815, 820, and carrying a concealed weapon was one of the offenses charged, La.C.Cr.P. art. 809. The trial court necessarily determined that the defendant was guilty of this lesser and included offense because in this case this finding was essential to finding the defendant guilty of the greater and inclusive offense. There was sufficient competent and admissible evidence to support the court’s finding that defendant was carrying a concealed weapon on June 19, 1976, and the trial judge, who necessarily found defendant guilty of the lesser and included offense, should have entered a judgment of conviction of the offense of carrying a Concealed weapon, La.R.S. 14:95, and should have acquitted the defendant of the offense of carrying a concealed weapon by a person who has been convicted of simple robbery, La.R.S. 14:95.1.