author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Billy Ray MILBY, Appellant.
    No. 58688.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Thomas W. Davenport, Jr., Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Milby was convicted of second-degree murder, La.R.S. 14:30.1 (1975), and sentenced to life imprisonment. He appeals, urging seven assignments of error.

The defendant Milby shot the victim De-moss in a barroom and then beat his wife, Mrs. Milby (who was with Demoss), with a shotgun. The victim and the defendant’s wife had in the past lived together.

At the trial, the chief defenses relied upon were: (a) Because of a mental defect at the time of the shooting, Milby was incapable of distinguishing between right and wrong, i. e., was legally insane, La.R.S. 14:14; (b) His gross intoxication at the moment of the offense precluded the specific criminal intent required for conviction of the crime charged, La.R.S. 14:15(2).

I.

Refusal to give special jury instructions

The most serious issue presented by this appeal concerns the failure of the trial judge to give special instructions requested by the defendant which relate to the defense of insanity. (Assignment of Error No. 7, special written charge number 5.)

The defense of insanity is based upon psychiatric testimony. The defendant construed it as being to the effect- that the accused Milby is subject to a characterological disturbance. When this underlying mental defect is aggravated by overindulgence in alcohol, allegedly the accused may sustain an acute brain syndrome, by which he has no conscious awareness of the difference between right and wrong.

Substantial lay evidence was also introduced tending to corroborate this behavior pattern.

The chief defense of the case was that, except when the syndrome occurs, the accused appears to be and is a completely normal and sane individual, in control of his characterological disorder; but that, when due to alcohol (or other aggravating factor) he is unable to control his mental defect, the accused sustains a complete disruption of his mental processes, has no conscious awareness of what he is doing, and is unable to distinguish between right and wrong.

The essence of the defense is that, at the time of the offense, the accused was legally insane by reason of his mental defect; even though, at the time of the trial and during most of his waking life, he was and is legally sane. To emphasize this defense, the defendant requested a special charge so that the jury could distinguish between a periodical and temporary legal insanity as contrasted with the layman’s notion of permanent “insanity”.

The portion of the general charge relating to the insanity defense includes three out of the charge’s total eleven pages. These general instructions were correct insofar as they went. The pertinent portion of the general charge does indicate that the insanity must relate to the time of the offense, not before or after, which implicitly recognizes the defense of temporary insanity relied upon by the accused.

Nevertheless, where (as here) insanity of a temporary nature is relied upon as the principal defense, it seems to us that the preferable practice would be to grant special written charges as to temporary insanity when requested by the accused, if they are wholly correct, La.C.Cr.P. art. 807 —at least, if (as here) the general charge only implicitly instructs the jury as to the issue.

The question is whether the trial court’s failure to give this special charge as requested is reversible error. The court’s general charge explicitly instructed the jury that the insanity must be proven to relate “to the time of the offense not before or after,” but it did not elaborate the defense of temporary insanity as requested by the accused.

A close issue is presented. Ultimately, we conclude that the lack of detail of the wholly correct general charge does not require reversal:

We are not persuaded that the additional requested special legal instructions in technical legal language would have so materially added to the jury’s understanding of the basic issue before it, that the denial of it prejudiced the substantial rights of the accused or constituted a substantial violation of any statutory right to have the special charge given. See La.C.Cr.P. art. 921. Further, examining the final arguments of counsel, we find that the issue of temporary insanity was fully and fairly argued as presented to the jury by the evidence.

We therefore do not find reversible merit to this assignment.

We likewise find no error in the trial court’s refusal to give other special jury charges requested:

Special Charge Number 1: The defendant requested the trial court to instruct the jury as to the mandatory penalty for second-degree murder, i. e., life imprisonment without benefit of parole, probation, or suspension of sentence for a period of forty years, La.R.S. 14:30.1 (1975).

In State v. Blackwell, 298 So.2d 798 (La.1974), we held that jury instruction or argument on penalties may be allowed or not, within the discretion of the trial court, because imposition of sentencing is within the province of the judge and is not a jury function. In State v. Prater, 337 So.2d 1107 (La.1976), a majority of this court agreed that the Blackwell rationale is inapplicable where, upon conviction, the trial judge must impose a mandatory sentence; and that, therefore, the trial court is required, upon request of the defendant, to charge with regard to a mandatory penalty, because then the penalty is in effect determined by the jury rather than by the judge.

However, as the concurring opinion in Prater noted, this modification of the Blackwell rule only applies to cases tried after the date of finality of Prater, September 27, 1976. Since the present case was tried in June of that year, prior to such effective date, the trial court did not here abuse its discretion by refusing to charge the jury as to sentence, under the interpretation of Blackwell prevailing at the time of this trial.

Special charges 2, S, 4, and 6 contained matters sufficiently within the general charge of the trial court as to justify the trial court’s refusal to give them. La.C.Cr.P. art. 807.

II.

Other assignments of error

The other assignments do not present reversible error:

Assignment 1: The trial court was in error in sustaining a hearsay objection by the state as to whether a state witness had received information as to the accused’s condition immediately before the shooting: The question did not attempt to elicit the (hearsay) information the officer had received from two specified witnesses, merely the fact whether he had received information.

Nevertheless, the testimony of the two witnesses was introduced into evidence and fully discloses the information as to the accused’s intoxicated condition reported to the officer. The refusal to allow the question caused no prejudice to the defendant under the circumstances.

Assignment 2: The probative value of the black and white photographs admitted for relevant purposes outweighed any possible inflammatory effect. State v. Smith, 327 So.2d 355 (La.1976).

Assignment 3: Over hearsay objection by the defendant, a state witness was permitted to testify that she had heard that the victim had taken another person with the accused’s wife to a night club on a date prior to the incident. The hearsay objection was erroneously overruled, because the response was introduced for the truth of the out-of-court information given by the witness rather than for any admissible purpose. State v. Thompson, 331 So.2d 848 (La.1976).

Nevertheless, no prejudice resulted under the circumstances of this case, because in fact there was eyewitness evidence introduced at the trial that the accused’s wife and another person had arrived at the night club with the victim on the occasion in question.

Assignment 4: We cannot say that the trial court abused its discretion in limiting re-cross-examination, following the state’s re-direct examination. The latter was properly confined to the subject matter of the cross-examination. La.R.S. 15:281. Under such circumstances, the trial court has discretion to curtail re-cross-examination as to aspects of the case not covered by the re-direct examination. See State v. Corbin, 285 So.2d 234, 237 (La.1973).

Assignment 6: The trial court did not commit reversible error by refusing a continuance sought on the morning of the trial. The continuance was sought because of the inability of a bedridden witness (just released from the hospital) to respond to a subpoena issued by the defendant.

The showing made justifies the finding that the witness was “too ill to testify”, so that her preliminary examination testimony (sworn and cross-examined) was therefore admissible at the trial instead of her live testimony, due to the unavailability of the witness. La.C.Cr.P. art. 295; State v. Ford, 336 So.2d 817 (La.1976). (The defense introduced the preliminary examination testimony of the unavailable witness.)

Under the circumstances, we find no abuse of the trial court’s discretion in denying the continuance, especially since the testimony of the witness at the hearing on the motion for a new trial shows that it was essentially the same as the testimony given by her at the preliminary examination.

Assignment 8: We find no abuse of the trial court’s discretion when, during hearing on the motion for a new trial, it sustained objection to defense questions as concerning matters not shown to be relevant to the decision of the issues raised by the motion for a new trial.

Assignment 9: At the time of sentencing, the defendant objected to the life sentence imposed upon him. He contends that it is excessive and therefore in violation of Article 1, Section 20, Constitution of 1974.

Assuming that excessiveness is (as some members of the court have indicated) a ground for appellate review, see State v. Williams, 340 So.2d 1382 (La.1976), we cannot say that a life sentence for (what the jury found to be) the intentional murder of another human being is excessive, when the jury rejected factual defenses of intoxication and insanity.

Decree

For the foregoing reasons, we affirm the conviction and sentence.

AFFIRMED.

MARCUS, J., concurs.

SANDERS, C. J., and SUMMERS, J., concur in the decree.

DIXON, J., dissents and is of the opinion that a rehearing should be granted.

      . The pertinent portion of special charge number 5 is represented by the first sentence of the second paragraph below (the substance of the first paragraph was already included in the general charge):
      “In order to find the defendant not guilty by reason of insanity the defendant must have been insane at the time the unlawful act was committed. It is not sufficient that he was insane before or after, or both before and after, the unlawful act; but he must have been insane at the particular moment of the crime. If, however, insanity of a permanent type or continuing nature, or characterized by a habitual and confirmed disorder of the mind, not temporary or occasional, is shown to have existed prior to the commission of the act, it would be presumed to continue up to the commission of the act, unless the presumption be overcome by competent evidence.
      “But where the insanity is periodical, temporary and not permanent, where there are lucid and sane intervals and when it is shown that the lucid intervals generally follow the attacks of insanity, then the presumption of continuance does not exist. The condition of mind which relieves an accused of criminal responsibility and which we term insanity is that at the time of the commission of the act he was laboring under such a defect of reasoning from disease of the mind or a defect of the mind as not to know the nature and quality of the act he was doing was wrong. In other words, that he was incapable of having the specific criminal intent which is an indispensable element in the crime with which he is charged. ” (Italics ours.)
      We pretermit whether the charge need not be given since not wholly correct. La.C.Cr.P. art. 807. The state points out that the last sentence may not be wholly correct, since specific criminal intent, La.R.S. 14:10(1), may exist even if, because of mental defect, the offender is incapable of distinguishing between right and wrong and is therefore exempt from criminal responsibility because of legal insanity, La.R.S. 14:14. (We note that the proposed charge, if the last sentence be regarded as not wholly correct, is less favorable to the defendant than if the sentence were omitted.)

      . The pertinent paragraphs are as follows:
      “However, with respect to the plea of not guilty by reason of insanity, different rules apply. First, the legislature has stated the basic law as follows:
      ‘If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.’
      “Now, the law begins with the presumption that everybody is sane; so that the state does not have to prove defendant was sane. Rather, defendant bears the burden of providing this issue by a preponderance of evidence; and this matter relates to the time of the offense, not before or after." (Italics ours.)

      . See supplemental volume of transcript, filed March 21, 1977.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF MONROE, Respondent, v. Gerry W. FRENCH, Relator.
    No. 58728.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Thomas W. Davenport, Jr., Davenport, Files, Kelly & Marsh, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Larry Lol-ley, City Atty., for plaintiff-respondent.
   TATE, Justice.

The defendant French was convicted of driving while intoxicated, second offense. La.R.S. 14:98C (1968). As required by the enhanced punishment provided for a second offense, he was mandatorily sentenced to imprisonment of 125 days; he was also fined $500.

Certiorari was granted, 339 So.2d 356 (La. 1976), to review the defendant’s conviction. His two assignments of error are directed at the state’s defective proof of a prior (first) conviction for the offense, a pre-req-uisite element for his conviction as a second offender.

Before the defendant may be held guilty, the state is required to prove this first conviction beyond a reasonable doubt. “The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute defendant’s guilt.” La.R.S. 15:271 (1968). See also La.C.Cr.P. art. 804, subd. A(1).

In the present instance, the state first introduced evidence from which the trial judge concluded that the accused had driven while intoxicated on the present occasion. The state then attempted to prove, over objection, a previous conviction of the accused for the offense of driving while intoxicated.

The state’s evidence was certified copies of a bill of information and minutes showing that on March 15, 1976, a “Gerry W. French” was convicted of the offense in the district court for Rapides Parish. Beyond this proof, the state made no attempt to prove that the accused (Gerry W. French) of Alexandria (in Rapides Parish) was the same person as the Gerry W. French shown by the exhibits to have been earlier convicted of driving while intoxicated.

(1)

The defendant’s first assignment of error is directed to the trial court’s allegedly erroneous admission of these exhibits.

The defendant objected to their admissibility, on the ground that these exhibits were not relevant, in the absence of proof that the person shown by them to have been convicted was the same person as the defendant. The trial court overruled this objection, as going to the weight rather than the admissibility of the exhibits.

The trial court erred in this ruling.

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).

In this instance, therefore, the evidence of the other conviction was not relevantly admissible, in the absence of proof that the person convicted was the same person as the defendant. Since, if connected up with the defendant, the exhibits were admissible, the trial court’s proper ruling was to admit the exhibits, conditioned upon subsequent proof of the connecting facts proving identity. See McCormick on Evidence, Section 58 (2d ed. 1972).

The trial court therefore erred in overruling the accused’s objection and in admitting this evidence unconditionally, without requiring the state to prove (then or subsequently) the requisite connexity of identity. The defendant’s conviction must therefore be reversed, and the case remanded for a new trial.

(2)

By his second assignment of error, however, the defendant urges that he is entitled to be acquitted, in that the trial court incorrectly denied his motion for acquittal of the second-offense element of the crime charged. La.C.Cr.P. art. 778 (1975). By this contention, the defendant argues that no evidence at all proves his guilt of driving while intoxicated, second offense. The proof that a Gerry W. French was earlier convicted of driving while intoxicated does not, in short, prove the present Gerry W. French’s guilt.

We have earlier agreed that, by itself, this evidence does not relevantly prove the accused’s guilt of this essential element of the crime. However, the erroneous admission over objection of some evidence tending to prove guilt entitles the accused on appellate review to a new trial, not to an acquittal.

The contention that erroneously admitted evidence is no evidence, such as to justify the appellate reversal of a trial court’s denial of a motion for acquittal, overlooks that the reviewing court does not accept the record as if the erroneously admitted evidence were deleted. The evidence in the appellate record of a prior conviction of a person of the same name is “some” evidence of the accused’s prior conviction, even though (in this case) erroneously admitted over objection, due to the lack of connecting foundation.

We cannot say that there is no evidence of a first conviction, only that the evidence of such prior conviction was improperly admitted over the defendant’s objection.

Accordingly, we do not find merit to the defendant’s second assignment of error. Cf. also State v. Butler, 322 So.2d 189, 194 (1975).

Decree

For the reasons set forth, we find that, by virtue of his first assignment of error, the defendant’s conviction and sentence must be set aside, and this case remanded for a new trial in accordance with law.

REVERSED AND REMANDED.

DIXON, J., concurs. “Gerry W. French’s” conviction is not irrelevant, but until there is evidence that the French’s are identical, an essential element of the offense is lacking.

DENNIS, J., concurs for the additional reason that the trial judge, by ruling that the defendant’s failure to take the stand “automatically converted” the prima facie case made by the city’s introduction of documents to a proof beyond a reasonable doubt, shifted the ultimate burden of persuasion upon an essential element of the offense in violation of due process under the state and federal constitutions. Mullaney v. Wilbur, 421 U.S. 684; State v. Searle, 339 So.2d 1194.

      . The defendant points out that not infrequently a father and a son of the same name live at the same address, and that, in an age of an ever more multitudinous and mobile population, identical names of different persons are not uncommon, nor is a conviction in Rapides Parish of a person of the same name of the defendant necessarily evidence even that this convicted person was a resident of Rapides Parish (as is the accused).


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jo Helen WEEKS.
    No. 58796.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      P. Clay Tillman, Jr., Tillman & Mitchell, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On September 23, 1975, the Beauregard Parish Grand Jury returned a bill of indictment, charging the defendant, Jo Helen Weeks, with second degree murder, La.R.S. 14:30.1, for having fatally shot her husband, Joel P. Weeks on the evening of July 2, 1975. Having pled not guilty at her arraignment, defendant, in February of 1976, was tried by jury and convicted of manslaughter, La.R.S. 14:31, a verdict responsive to the offense charged. Defendant was thereafter sentenced to serve twelve years at hard labor in the custody of the Department of Corrections, with credit for time served. In this appeal defendant relies upon five assignments of error.

Defendant complains in assignment number one that the trial judge erred in beginning trial without first having ascertained whether she had been informed at arraignment of her right to waive trial by jury; and in her assignment number two she alleges that she was never given an opportunity to elect to be tried by the court alone. The record clearly indicates that defense counsel and defendant were fully aware of defendant’s option. See State v. Ardoin, 340 So.2d 1362 (La.1976); State v. Sharp, 338 So.2d 654 (La.1976); State v. Rachal, 212 La. 731, 33 So.2d 501 (1947). There is no merit to these assignments.

In assignment number three, defendant alleges that the trial court failed to admonish the jury not to discuss the case among themselves or with others before releasing them at the conclusion of the first day of trial on February 23, 1976. Defendant’s contention is not borne out by the record, for minutes for the 23rd day of February contain the following entry:

“The court advises the jurors that have been selected that they are not to discuss the matter with anyone nor is anyone to discuss the matter with them. . . .”

The record therefore shows the assignment to be without merit.

Defendant contends in her assignment number four that the trial court erroneously allowed the introduction at trial of certain statements made by her to the investigating officers before she had been advised of her Miranda rights and while she was upset at the time. The statements which form the subject matter of this assignment were those made by defendant to three police officers while they were at the scene of the shooting. When the officers arrived on the scene, they had been informed only that a killing had taken place. Each officer then inquired whether anyone knew what had happened. Defendant related to each, sometimes in response to general investigatory questioning and sometimes spontaneously, that she was present with her husband when he was killed, that her back was to him when she heard a gunshot, and that when she turned she saw him on the floor, ran to him, and heard him call out “Nigger.” We conclude from a review of the record that the investigation had not begun to focus upon defendant as a possible offender at the time these statements were given.

In State v. Brown, 340 So.2d 1306 (La.1976) we said that Miranda warnings are not a pre-requisite to admissibility of statements taken by officers during non-custodial, general, on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation has passed the investigatory stage and has focused on the accused. See also State v. Anderson, 332 So.2d 452 (La.1976); State v. Ned, 326 So.2d 477 (La.1976); State v. Roach, 322 So.2d 222 (La.1975). The officers testified without contradiction that at the time these statements were given they had no reason to suspect that defendant had committed an offense, and that the investigation had not yet focused on her as a probable, or even possible suspect. They further testified that defendant’s initial version of the incident led them to believe that an intruder had entered the home and had shot her spouse. We do not find under the circumstances presented here that the officers were compelled at this time to advise defendant of her Miranda rights.

Likewise, we find no merit in defendant’s contention that the statements were involuntarily given because she was upset and under a significant amount of stress. Upon review of the record in this case, we conclude that the testimony amply supports the trial court’s finding that defendant was sufficiently in possession of her mental faculties so as to make the statements -voluntarily.

Defendant in assignment number five urges that the trial court erred by admitting over defense objection the testimony of Deputy Joe Bartlett of the Calcasieu Parish Sheriff’s Office. The assignment is based on the contention that to admit the Deputy’s testimony, after he had identified himself as a polygraph expert, in effect amounted to the introduction of polygraph results evidence at trial.

The background facts are as follows. When Deputy Bartlett was called to the stand by the state, he responded to several initial questions by relating that he lived in Sulphur, Louisiana; that he was a deputy with the Calcasieu Parish Sheriff’s Department; that his duties with the department were that of a polygraph examiner; that he was employed in that capacity since 1963 and was so employed on July 3, 1975, the day following the offense. When asked whether he had occasion to take anyone’s statement on July 3, he responded affirmatively. At this point, defense counsel objected and expressed the hope that the state was not going to introduce any evidence of a polygraph test because such evidence would be inadmissible.

At the request of the state the jury was thereupon excused and counsel for the state and defense presented arguments. Defense counsel argued that the results of a polygraph examination were inadmissible and that the witness’ identification as a polygraph expert was “going to mislead the jury” by giving extra credence to defendant’s statement allegedly given to the deputy-

The state took the position that while polygraph test results are inadmissible, there was nothing to prohibit the deputy from testifying as to the content of a statement he had obtained. The prosecutor also stated that he did not intend to introduce any testimony or evidence concerning whether a polygraph had been taken or what the test result might have been. The judge allowed the state to continue its direct examination of Deputy Bartlett.

While testifying concerning a conversation he had with defendant in his office on July 3,1975, the deputy said that defendant had voluntarily given him an oral statement after being advised of her rights, in which she related that during the course of an argument she had picked up the shotgun pointed it at her husband, pulled the trigger and shot him. Throughout the deputy’s testimony, there was no reference to the fact that the statement was taken during a polygraph examination nor was any reference made to any polygraph results.

It is, of course, true that under our jurisprudence the results of polygraph examinations are unacceptable as evidence in criminal prosecutions. State v. Governor, 331 So.2d 443 (La.1976); State v. Refuge, 270 So.2d 842 (La.1974). As earlier indicated, however, there was here no testimony that the polygraph examination was conducted, nor were results of any such test alluded to.

Furthermore the jury’s attention was called to the possible administration of a polygraph test more by counsel’s objection in their presence (“. . .1 hope . that the state is not going to try to introduce any evidence about a polygraph because we are all aware of the fact that it’s inadmissible and I hope the state is not going to sneak in some statement made during the course of something . ”) than by the witness’ earlier testimony as to his occupation. Defendant cannot be permitted to alert the jury to the possibility that a polygraph test had been administered, then object to otherwise admissible testimony concerning an inculpato-ry statement because the jury might believe that the statement was given during the course of a polygraph test and might also believe it to be especially more credible.

While we do not feel that the state’s initial presentation of the witness as a polygraph operator is entirely free from question, we nevertheless believe that the trial judge correctly allowed the deputy’s testimony. At that point if defendant had had real concern about the possibility of ostensible inferential assumptions by the jury, he could have requested the court to admonish the jury, as contemplated by Article 771 of the Code of Criminal Procedure. No such admonition in this instance was requested.

In any event, it does not in our opinion appear that the possible error being complained of was prejudicial to the substantial rights of the accused or constituted a substantial violation of a constitutional or statutory right. C.Cr.P. art. 921. The assignment is without merit.

For the reasons above related, defendant’s conviction and sentence are affirmed.

      . Code of Criminal Procedure Article 780 provides:
      “A defendant charged with any offense except a capital offense may knowingly and intelligently waive a trial by jury and elect to be tried by the court. At the time of arraignment, the defendant in such cases shall be informed by the court of his right of waiver and election.” Amended by Acts 1975, 1st Ex.Sess. No. 16, § 1, eff. Jan. 28, 1975.

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

      . While the minutes of the court with respect to defendant’s arraignment do not reflect that she was advised of her right to elect to be tried by jury or by the court alone, the transcription of the arraignment, which is included in the record, clearly shows that the trial court did verbalize the option available to defendant. The transcript shows that after defendant entered a not guilty plea, the judge told her:
      “[By The Court]: All right. You are entitled now to be tried either by Jury or by the Court in this matter when the time comes. I give you that for the record.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Michael O’Shea COOK.
    No. 58806.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Tommy J. Adkins, Ruston, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., O. L. Waltman, Jr., E. J. Bleich, Asst. Dist. Attys., for plaintiff-ap-pellee.
   MARCUS, Justice.

Michael O’Shea Cook, was indicted by the grand jury for the Parish of Lincoln for having committed second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty as charged. He was subsequently sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for a period of forty years, with credit given toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in overruling his motion to quash the indictment on the ground that it did not charge an offense punishable under a valid statute. He argues that the second degree murder statute, La.R.S. 14:30.1, suffers from the same infirmities ascribed to our former first degree murder statute in Rob erts v. State, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) inasmuch as it provides a mandatory penalty; the jury is precluded from considering mitigating circumstances; there is no review of sentencing; and the jury is instructed on and considers responsive verdicts whether or not they are supported by the evidence. For these reasons, defendant contends that the mandatory penalty provision embodied in La.R.S. 14:30.1 renders the statute an unconstitutional violation of his due process rights guaranteed by the state and federal constitutions. We do not agree.

In Roberts v. State, supra, the United States Supreme Court, without disturbing Roberts’ conviction, ruled unconstitutional the mandatory death penalty provision of Louisiana’s first degree murder statute. However, in a companion case to Roberts, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the Court made it clear that its rulings with respect to mandatory death penalty statutes rested squarely on the predicate that the death penalty is qualitatively different from a sentence of imprisonment, however long, thereby requiring a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. With respect to statutes not requiring capital punishment, the Court indicated that mandatory sentencing provisions are not constitutionally prohibited. We find no merit in defendant’s contention that the mandatory penalty prescribed by La.R.S. 14:30.1 violates the federal constitution. Nor are we persuaded that defendant’s due process rights under our state constitution have been infringed. Furthermore, we note that this court has specifically upheld the penalty mandated in our second degree murder statute as not constituting cruel and unusual punishment. State v. Anderson, 315 So.2d 266 (La.1975). We have also rejected attacks on our responsive verdict system as permitting a jury to return a verdict of guilty of a lesser included offense not supported by the evidence. State v. Peterson, 290 So.2d 307 (La.1974); State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).

For the foregoing reasons, we find no error in the ruling of the trial judge denying defendant’s motion to quash the indictment. Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in overruling his motion to suppress certain physical evidence seized in a warrantless search of his residence conducted with his mother’s consent. Defendant alleges that his mother’s consent to the search was not freely and voluntarily given, thereby rendering the search illegal and the evidence seized pursuant thereto inadmissible at trial.

The testimony adduced at the suppression hearing indicates that defendant’s mother, Mrs. E. C. Cook, rented a small three-room house and that defendant resided there with her. Mrs. Cook, a fifty-seven year old domestic employee with a fourth grade education, paid the entire rent as well as other expenses connected with the residence and had general access and control of the entire dwelling. At approximately 6:30 p. m. on March 22, 1976, two Ruston city police officers knocked on the door of the house. Officers Stanley Neal and Roland Kay testified that, after being admitted by Mrs. Cook, they asked if they could search the house, whereupon Mrs. Cook, who was alone at the time, responded in the affirmative indicating that she wanted to “do the right thing.” Mrs. Cook was then presented with a standard “Permission to Search” form which she signed, acknowledging her consent to the search. Officers Neal and Kay explained that the signature on the form appears upside down because Mrs. Cook, who was seated across from them, signed the document before they had an opportunity to turn it around. Both officers clearly maintained that Mrs. Cook was apprised of the contents of the consent form before she signed it and that no threats or coercion were employed to influence her to consent to the search. With the assistance of two other officers who had subsequently arrived at the scene, Officers Neal and Kay then thoroughly searched the house and seized a machete knife, a bank bag and several articles of clothing. According to the officers, Mrs. Cook not only consented to the search but cooperated by helping them locate her son’s clothing and pointing out the machete. The testimony of defendant’s mother, Mrs. Cook, conforms to that of the police officers in most respects. She admitted telling the officers that they could search, signing the consent form and helping them find certain articles. She confirmed, moreover, that she had free access to her son’s room which formed a passageway between the front and back of the house. Although she denied being instructed as to the contents of the consent form and claimed that she was unable to read it, Mrs. Cook apparently understood the import of the document. She testified that the officers “asked me could I sign this to search the house and I did.” In response to questioning by the trial judge, Mrs. Cook indicated that she understood what a search was and that her home was searched with her consent. Defendant nevertheless contends that subtle tactics were used by the officers to induce the consent in the instant case. Defendant’s mother and a step-brother (who arrived shortly after the police) claimed that they were told by the officers that assistant district attorney Joe Bleich, the son of Mrs. Cook’s employer, would advise her to cooperate if he were consulted. This allegation, however, was steadfastly denied by the officers. Moreover, the assistant district attorney himself testified that he had no knowledge of the search whatsoever until well after it had been conducted.

It is well settled under the fourth amendment that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. One of these well-recognized exceptions is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Morris, 340 So.2d 195 (La.1976). It is likewise established that lawful consent for a search may be given by a third party who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Bartley, 329 So.2d 431 (La.1976); State v. Wyatt, 327 So.2d 401 (La.1976). We have specifically recognized the application of this principle to searches made with the consent of parents having uncontrolled access to the belongings of children residing with them. State v. Morris, supra; State v. Johnson, 319 So.2d 786 (La.1975). The question of whether consent to a search was voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, supra; State v. Bartley, supra; State v. O'Conner, 320 So.2d 188 (La.1975). The trial judge’s determination in this regard is entitled to great weight on appeal. State v. Bartley, supra.

The record in the instant case clearly supports the finding of the trial judge that defendant’s mother, Mrs. E. C. Cook, had uncontrolled access to her son’s belongings and that she voluntarily consented to the search of the residence. Accordingly, the search in the instant case was lawfully conducted and the evidence seized pursuant thereto was admissible against defendant at trial on the merits. The trial judge did not abuse his discretion in overruling defendant’s motion to suppress. Assignment of Error No. 2 is without merit.

DECREE

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

      . Mack Charles Gay was jointly indicted with defendant for second degree murder. Gay pleaded guilty and received the same sentence imposed on defendant Cook. The record indicates that Gay waived his right to an appeal after being duly advised of his right to appellate review of his conviction and sentence.


text:
    STATE of Louisiana v. Sylvester WARE.
    No. 58818.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Mack Marsh, Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., James A. Norris, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Sylvester Ware was charged by bill of information with committing armed robbery in violation of R.S. 14:64. After trial, a jury returned a verdict of guilty as charged and defendant was sentenced to twenty-two years in the custody of the Department of Corrections, without benefit of parole, probation or suspension of sentence. On this appeal, he relies upon six assignments of error for reversal of his conviction and sentence.

An armed robbery occurred at Barbara’s Grocery located on Winnsboro Road in Monroe, Louisiana, on Saturday evening, March 6, 1976. At the time of the robbery, four persons were in the store preparing for a fish fry. Mr. James Mann, one of the owners of the store, and Mr. George Hunt were in the front of the store near the cash register, and Mrs. Barbara Mann and Mrs. Ethel Bass were in the rear of the store making preparations to fry fish.

Three black males then entered the store in a crouched position through the front door. Two of the males remained near the front of the store and one proceeded to the back of the store where he forced Mrs. Mann and Mrs. Bass to lie down on the floor, then proceeded back up to the front of the store where he struck Mr. Hunt on the head and took his wallet. One of the two robbers who stayed at the front of the store took all of the cash from the cash register and left, followed shortly thereafter by the remaining two robbers.

ASSIGNMENT OF ERROR NO. 1.

By this assignment defendant complains that the trial court erred in failing to sustain his motion to quash urged on the ground that the bill of information improperly charged him with committing two offenses in the same count, in violation of the joinder rules set forth in Title 13, Chapter 5 of the Code of Criminal Procedure.

The bill of information in pertinent part read as follows:

“ . . . Sylvester Ware . . while armed with dangerous weapons, to wit: pistols, robbed Barbara Mann and George Hunt, contrary to the provisions of R.S. 14:64 ...”

Defendant’s motion to quash the bill of information contended that it was duplicitous in that it included two offenses in the same count. After a hearing, the trial judge denied defendant’s motion to quash.

The state in brief concedes that recent amendments to Articles 493 and 495, the repeal of Articles 491 and 492, and the addition of Article 495.1, Code of Criminal Procedure (as per Act No. 528 of 1975) simply allow joining two or more offenses in the same indictment or bill of information in separate counts for each offense, not in a single count. However, they take the position that defendant here was charged not with two offenses, but with a single offense, an armed robbery of two victims, the occurrence having been a single incident.

While defendant’s arguments are not frivolous, we find it unnecessary to discuss them at length in view of the fact that we have just recently decided this very legal issue adversely to defendant’s position. In State v. Foe, 337 So.2d 491 (La.1976), we reviewed an identical type of bill of information in which defendant was charged in one count with armed robbery “of Julia Kisiel and Bruno Kisiel,” and we concluded that the state, while not required to do so, had opted to charge defendant with a single armed robbery of dual victims, in a circumstance where there was a single transaction involving identical time, place and parties—a single set of facts—and that no prejudice could result under the circumstance. Our decision in State v. Foe, supra dictates that we find assignment of error number one non-meritorious.

ASSIGNMENT OF ERROR NO. 2.

In this assignment defendant contends that the trial court erred in refusing to order the state to furnish answers to a number of interrogatories in his bill of particulars.

The interrogatories which defendant asserts the state should have been compelled to answer are as follows:

# 3. What thing of value is the defendant alleged to have committed the theft of?
# 4. From what person was anything of value allegedly taken;
# 5. From the immediate control of what person was anything of value taken?
# 6. Do you contend that this defendant used force in the commission of this offense or is it alleged that this defendant used intimidation in the commission of this offense?
# 7. Describe specifically the dangerous weapon alleged to have been used in the commission of this offense?

The state in response to these interrogatories stated that defendant was not entitled to the information requested.

The state employed the short form bill of information in charging this armed robbery. It is, of course, true that the short form bill of information has withstood constitutional attack chiefly because of the requirement that, upon defendant’s request for a bill of particulars, the state must inform him of the essential facts constituting the offense with which charged, including more specific facts if the offense may be committed in a number of different ways. State v. Mason, 305 So.2d 523 (La.1974). The state therefore is compelled to provide defendant with sufficient information so that he may be informed of the nature and cause of the charge against him in order that he might better be able to prepare his defense and to meet the charges against him.

While we believe that he was entitled to be told what was the nature of the thing(s) he was accused of taking, what person or persons, is alleged to have been the victim, or victims, and whether he is charged with having taken something from the person(s) or from his (their) immediate control, we do not find error in this case in the state’s refusal to respond to these questions in view of the fact that defendant was fully aware of each of these matters by virtue of the state’s evidence and testimony presented at the preliminary examination attended by defendant and his attorney.

This assignment does not have merit.

ASSIGNMENT OF ERRORS NOS. 3 AND 6.

Defendant moved to suppress as evidence at trial any in-court identification by Messrs. Mann and Hunt, two of the victims, for the alleged reasons that any such identification would necessarily be tainted by im-permissibly suggestive photographic and in-person line-ups conducted on the same day the crime was committed and defendant was arrested. He also moved to suppress a pistol seized without a search warrant from the residence of one Edgar Simon.

Defendant’s contentions with respect to the line-up are not borne out by the record. Each of them were conducted in a fair and proper manner free of suggestiveness of any character.

His contention that the pistol should not have been suppressed is likewise without merit. There was no search at Mr. Simon’s residence. Rather Simon and his friend, sometimes apartment guest, Aaron Tolliver, simply assented to turning the pistol over to the deputy, led the deputy to the pistol (Tolliver did, with Simon’s tendered apartment key), and turned it over to the deputy.

ASSIGNMENT OF ERROR NO. 4.

The trial judge refused to permit defendant in cross-examination to impeach a state witness by inquiring about previous arrests. Louisiana Revised Statute 15:495 specifically provides that “Evidence of conviction of crime, but not of arrest . is admissible for the purpose of impeaching the credibility of the witness . . .; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been . . . arrested, and can only be questioned as to conviction The ruling of the trial judge was therefore correct under the statute. Nonetheless defendant here attacks the constitutionality of R.S. 15:495 on the basis that it is in derogation of the confrontation clause of the sixth amendment of the United States Constitution and Article I, § 16 of the Louisiana Constitution of 1974.

The right to confrontation, while a significant constitutional right, is not so unlimited as to require permitting a defendant on cross-examination of state witnesses to make any and all inquiries of whatever character. R.S. 15:495, applicable with respect to the cross-examination of defendant as well as witnesses, is not an unreasonable limitation. R.S. 15:495 is not constitutionally impermissible in derogation of the confrontation clauses of the federal and/or state constitutions. The assignment does not have merit.

ASSIGNMENT OF ERROR NO. 5.

This armed robbery was committed by four individuals, three of whom had entered Barbara’s grocery store partially masked, one who had driven the three to the store and who acted as a get-away driver. Two of defendant’s three accomplices testified against defendant at trial and identified all four perpetrators. They did so after having been advised by the judge of their right to remain silent. When the state placed the third accomplice, Aubrey Humphrey, on the stand and.had the court explain to him that he had a right to remain silent and not testify, Humphrey expressed his desire to remain silent. At that point, the prosecutor asked Mr. Humphrey if he had received any threat to himself or anyone he knew or cared for, in relation to his impending testimony in the case. At that point, the trial judge stopped the questioning and removed the jury. Counsel for defendant had immediately moved for a mistrial because of the question and the trial judge denied the request. Outside the presence of the jury the witness was asked the question again. He responded that he was aware of no such threat. While not waiving his right to complain of the denial of his motion for mistrial, counsel for defendant, along with the prosecutor, agreed that the trial judge should advise the jury of the witness’ negative response outside of the jury’s presence.

Defendant now complains that the court erred in not granting him the requested mistrial. In support of this contention he argues that a mistrial should have been granted under Article 770 of the Code of Criminal Procedure which provides that “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the . . . district attorney . ., during the trial or in argument, refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible . . Defendant contends that the question of the district attorney referred to a crime, threatening of a witness (a violation of R.S. 14:122(3)) and that it was obvious from the content of the question that the prosecutor was alleging that the defendant had committed such crime.

We assume for the purpose of argument that the prosecutor is barred from alluding to a defendant’s having threatened a state witness to prevent his testifying (by virtue of Article 770). Nonetheless, the crime to which indirectly referred (assuming that an inquiry is a reference) was not alleged by the prosecutor to have been committed by the defendant. Moreover, the witness’ negative side-bar response communicated to the jury by the judge, proved the prosecutor’s query to have been just that, and obviated any prejudice to defendant.

The wisdom of such a question by a prosecutor might well be questioned. Nonetheless, under the circumstances here Article 770 in our view did not mandate a mistrial and the trial judge did not err in refusing to grant it.

For the reasons assigned the conviction and sentence of defendant Sylvester Ware are affirmed.

      . Defendant argues that the repeal of Articles 491 and 492 does not eliminate the objection of duplicity or make it improper to raise such objection by motion to quash; that even though the amendment to 495 has deleted duplicity as an objection which “may be urged only by a motion to quash,” Article 531 still provides that all preliminary pleas, with exceptions not here pertinent, shall be urged by a motion to quash; and that subsection 3 of Article 532 provides that a motion to quash may be based on the ground that the indictment is duplicitous. He then presents several not implausible reasons why the state should not be permitted to join two offenses in the same count.


author: MARCUS, Justice. CALOGERO, Justice,

text:
    CITY OF BATON ROUGE v. Paul B. SHORT.
    No. 58973.
    Supreme Court of Louisiana.
    April 11, 1977.

      Joseph F. Keogh, City-Parish Atty., W. George Bayhi, Asst. City-Parish Atty., for plaintiff-respondent.
    Julius F. Harrell, Baton Rouge, for defendant-relator.
    Ellis P. Adams, Jr., Baton Rouge, Executive Director, Louisiana District Attorneys Assn., amicus curiae.
   MARCUS, Justice.

Paul B. Short was charged by affidavit in the city court for the City of Baton Rouge with violation of a local parking ordinance and with driving while intoxicated in violation of La.R.S. 14:98. The city prosecutor acted as the prosecuting attorney on both of these charges. At the beginning of trial, defendant objected to prosecution by the city prosecutor on the ground that La.Const. art. 5, § 26(B) (1974) vests the district attorney with exclusive charge of every criminal prosecution by the state in his district. The trial judge overruled defendant’s objection; defendant was tried by judge and found guilty as charged. For violation of the local parking ordinance, defendant was ordered to pay a fine of ten dollars; for violation of the state statute against driving while intoxicated, he was sentenced to pay a fine of one hundred twenty-five dollars plus eight dollars court costs, in default thereof ten days imprisonment. We granted defendant’s application for writs in this case to consider the correctness of the judge’s ruling permitting the city prosecutor to prosecute defendant for a violation of the state statute against driving while intoxicated, La.R.S. 14:98. 341 So.2d 411 (La.1976).

We note at the outset that the jurisdiction of the city courts over first and second offenses of driving while intoxicated is not in dispute. Under the new Louisiana constitution, city courts retain the jurisdiction vested in them under the 1921 constitution over criminal cases prosecuted under state law which are not punishable by imprisonment at hard labor. La.Const. art. 5, § 15 (1974); La.Const. art. 7, § 51 (1921); La.R.S. 13:1894. First and second DWI offenses fall into this category and therefore may properly be prosecuted in city court. The sole issue presented for our consideration herein is whether or not prosecution in city court by a city prosecutor for a violation within the limits of the city or municipality of the state statute against driving while intoxicated impermissibly infringes on the broad powers vested in the district attorneys of this state by the 1974 Louisiana constitution.

Prior to the adoption of the 1974 constitution, the powers and duties of state district attorneys were defined only by statute. La.R.S. 16:1 provided in pertinent part that “[t]he district attorneys throughout the state . . . shall represent the state in all criminal actions.” More particularly, La.R.S. 16:3 directed that “[t]he district attorneys throughout the state shall represent the state in all criminal prosecutions before city courts constituted by law.” Subsequent to these enactments, the legislature passed La.R.S. 13:1894.1 containing the following relevant provisions:

. [A]ll prosecutions in any city, parish or municipal court, the city, municipal and traffic courts of the City of New Orleans excepted, based on or arising out of the operation of a vehicle by a person while intoxicated shall be charged and prosecuted solely under the provisions of R.S. 14:98.
For the purposes of this section all city, parish and municipal courts shall have concurrent jurisdiction with the district courts over violations otherwise subject to their jurisdiction provided for by R.S. 14:98 except in those cases wherein the person or defendant is charged as a third or subsequent offender under the provisions of R.S. 14:98(D) and (E).
All such charges filed under the provisions of this section shall be on affidavit and such charges shall be filed and prosecuted by the city attorney or the city prosecutor when said charges are filed on account of violations occurring within the territorial limits of the city or municipality and by the district attorney or his representative when said charges are filed on account of violations occurring outside of such territorial limits of the city or municipality. (Emphasis added.)

La.R.S. 13:1894.1 clearly purported to confer on city attorneys power to prosecute certain violations of state law in city courts, which power had previously been vested in the state district attorneys by La.R.S. 16:3. At the time of its passage, however, no provision of our state constitution prohibited such legislative action. In City of Baton Rouge v. Mahnken, 260 La. 1002, 257 So.2d 690 (1972), we reconciled the two legislative pronouncements, finding that insofar as La. R.S. 13:1894.1 provided for prosecution of the state statute against driving while intoxicated by a city prosecutor in city court, it had impliedly repealed the earlier enacted La.R.S. 16:3 to the extent that the statutes were in conflict.

In 1974 the legislature approved and the people of this state voted to adopt a new constitution wherein the powers and duties of the state district attorneys are for the first time constitutionally defined. La.Const. art. 5, § 26. provides:

(A) Election;. Qualifications; Assistants. In each judicial district a district attorney shall be elected for a term of six years. He shall have been admitted to the practice of law in the state for at least five years prior to his election and shall have resided in the district for the two years preceding election. A district attorney may select assistants as authorized by law, and other personnel.
(B) Powers. Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advis- or to the grand jury. He shall perform other duties provided by law.
(C) Prohibition. No district attorney or assistant district attorney shall appear, plead, or in any way defend or assist in defending any criminal prosecution or charge. A violation of this Paragraph shall be cause for removal.

It is fundamental that when a constitutional provision is plain and unambiguous, its language must be given effect. Police Jury v. St. Charles Parish Waterworks Dist. No. 2,243 La. 764, 146 So.2d 800 (1962). It is likewise settled that when a statute conflicts with a constitutional provision, the statute must fall. Roy v. Edwards, 294 So.2d 507 (La.1974); Police Jury v. St. Charles Parish Waterworks Dist. No. 2, supra. In our view, La.Const. art. 5, § 26(B) clearly and unambiguously vests the district attorney or his designated assistant with the exclusive charge of every criminal prosecution by the state in his district. This power is subject only to certain limited powers of the attorney general provided in La.Const. art. 4, § 8 (1974). State v. Neyrey, 341 So.2d 319 (La.1976); Guidry v. Roberts, 335 So.2d 438 (La.1976). Insofar as La.R.S. 13:1894.1 provides that violations of the state statute against driving while intoxicated shall be filed and prosecuted in city court by a city prosecutor in his capacity as such when such offenses occur within the territorial limits of a city or municipality, the statute is at variance with the broad constitutional powers accorded the district attorneys of this state. We therefore declare this provision, and this provision only, unconstitutional. Since defendant in this case was prosecuted by a city prosecutor under the language of La.R.S. 13:1894 herein declared invalid, rather than by the district attorney or his designated assistant, his conviction and sentence must be reversed. However, we will not give retroactive application to this decision. Rather, we give it only prospective application to trials commenced after publication of this opinion in West’s Southern Reporter. Except where a new rule concerning the application of constitutional rights goes to the very integrity of the fact-finding process (Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)), the cases do not force retroactive application. State v. Rester, 309 So.2d 321 (La.1975). We find no requirement of retroactive application in the instant case. We consider that the administration of justice would be better served by giving prospective application to this decision.

We now consider whether the remainder of the act may reasonably function without the offending provision or whether the statute must fall in its entirety. La.R.S. 13:1894.1 was enacted by Act No. 233 of 1970. Section 2 of the statute provides:

If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.

It has frequently been recognized by this court that the unconstitutionality of a portion of a statute does not necessarily invalidate the whole, particularly where there is a severability clause as here. But it is equally well settled that such rule applies only when the unconstitutional part is independent of and separable from the rest. If it is interrelated and connected with the other portions as to raise the presumption that the legislative body would not have enacted one part without the remainder, then the entire enactment is null. Guidry v. Roberts, 335 So.2d 438 (La.1976); Roy v. Edwards, supra; Gaudet v. Economical Super Market, Inc., 237 La. 1082, 112 So.2d 720 (1959).

The severability clause included in the statute under consideration herein creates a presumption of the enactment’s sev-erability in fact. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949). We are satisfied that the portions of La.R.S. 13:1894.1, providing for prosecution of all DWI offenses under La.R.S. 14:98, delineating concurrent jurisdiction of city and district courts over first and second DWI violations and directing the disposition of collected fines, forfeitures and penalties are not constitutionally infirm. These provisions are not so interrelated with the invalid provision that the legislature would not have enacted the one without the other. Hence, in accordance with the severability provision of the statute, we find that the invalid provision of La.R.S. 13:1894.1 is sev-erable from the rest of the statute.

DECREE

For the reasons assigned, defendant’s conviction and sentence for violation of the Baton Rouge city parking ordinance are affirmed. However, his conviction and sentence for driving while intoxicated in violation of La.R.S. 14:98 are reversed and the case is remanded for further proceedings not inconsistent with the views expressed herein.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for the reasons assigned by CALOGERO, J.

CALOGERO, Justice,

dissenting.

I would affirm defendant Short’s convictions and sentences.

If I believed, as the majority holds, that the constitutional provision which states that “a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district (La.Const. art. V, § 26(B)) requires that the district attorney’s office be vested with the exclusive power to prosecute every violation of state law, then I would agree that the constitutional requirement superceded any previous legislative pronouncement to the contrary. La.Const. art. XIV, § 18 (1974). I have read the entire pertinent transcript of the Constitutional Convention, however, in which Article V, Section 26(B) was discussed and voted on. XI Constitutional Convention of 1973, Verbatim Transcripts, 35th Day, pp. 95-130; XXXVI Transcripts, 112th Day, p. 134; XXXVII Transcripts, 113th Day, pp. 79,102; XXXIX Transcripts, 121st Day, pp. 187-189, 198. I am convinced that the sole reason for the inclusion of the provision was a feeling on the part of some delegates that the constitution should set forth a general statement of the duties of each constitutional officer. See especially XI Transcripts, 35th Day, pp. 97-99 and 125-130. It was not intended to mandate that the district attorney exclusively be the public official who should prosecute all violations of state law, certainly not with respect to nullifying the statutory enactment which directs city prosecutors to prosecute certain violations of R.S. 14:98. In fact, it appears to me that the real concern of the delegates was the division of authority between the attorney general and the district attorneys.

The actual provision as initially passed by the convention read as follows:

“A district attorney shall have charge and control of every criminal prosecution in his district and shall perform such other duties as may be provided by law.” XI Transcripts, 35th Day, p. 125.

This language apparently was intended to convey essentially the same meaning as had the previous statutory provisions of La.R.S. 16:1 and 16:3. It was in the style and drafting committee that the asserted exclusive nature of the authority was formulated with the addition of the phrases “[ejxcept as otherwise provided by this constitution” and “by the state.” I therefore conclude from this legislative history that there was never any intention on the part of the delegates to the Constitutional Convention to deprive city prosecutors of the authority to maintain certain prosecutions in city court for first and second violations of state DWI law.

An examination of the language of the constitutional provision likewise confirms that the constitution did not invalidate R.S. 13:1894.1. The provision recites that a district attorney “shall have charge of every criminal prosecution by the state in his district.” This Court must interpret R.S. 13:1894.1 in light of this constitutional provision in an effort to uphold the constitutionality of the statute. Sevin v. Louisiana Wildlife and Fisheries Com’n, 283 So.2d 690 (La.1973); Pearce ex rel. Structural Pest Control Com’n v. Sharbino, 254 La. 143, 223 So.2d 126 (1969). Doing that, I believe that the district attorneys still “have charge” of these prosecutions. I interpret the statute to mean that it does not grant exclusive authority to city prosecutors to maintain first and second offense DWI prosecutions in city courts when the offense occurs within municipal boundaries. Instead, the city prosecutors and district attorney have concurrent authority in these cases, as do city courts and criminal district courts in these situations. State v. Fuller, 312 So.2d 287 (La.1975). Final authority even in these matters rests with the district attorney who, by constitutional grant, has “charge of every criminal prosecution by the state in his district.” But absent exercise by the district attorney of that control over these state DWI prosecutions in city courts, the city prosecutors may properly, pursuant to R.S. 13:1894.1, charge and prosecute all DWI’s in city court for violation of R.S. 14:98 (when the offense takes place within the city limits, and when it was a first or second offense). I recognize, as has this Court in other situations, see State v. Neyrey, 341 So.2d 319 (La.1976) and Guidry v. Roberts, 335 So.2d 438 (La.1976), the constitutional authority of the district attorney over all state criminal prosecutions in his district, .subject only to certain limited powers of the attorney general as provided in Article IV, section 8 of the 1974 Constitution.

For these reasons, I believe that the majority falls into the error of being overly technical when it holds part of R.S. 13:1894.1 unconstitutional and reverses defendant’s conviction.

In doing so, the majority also, unwisely it seems to me, has delayed the effective date of its holding until that date in the future when West Publishing Company publishes the opinion in the Southern Reporter. If it is true, as the majority holds, that prosecutions for state drinking while intoxicated offenses cannot constitutionally be prosecuted by city prosecutors, then I cannot understand why this Court can allow the invalid (because constitutionally infirm) prosecutions to continue in every parish using this system until that arbitrary date in the future when West Publishing Company happens to publish this particular opinion.

I would affirm this DWI conviction, and I respectfully dissent.

      . La.Code Crim.P. art. 382 provides that a prosecution for violation of an ordinance shall be instituted by affidavit. Other criminal prosecutions in city court shall be instituted by affidavit or information.

      . Defendant also assigned as error in his application the trial judge’s ruling, over his objection, that the state need not make an opening statement. Recently, in State v. Bolen, 338 So.2d 97 (La.1976), we held that an opening statement by the state is not required in a bench trial so long as the failure to make such a statement does not result in unfair surprise to defendant. Defendant does not contend that he was unfairly surprised by the state’s case. Moreover, the record does not indicate that the state presented any evidence that defendant was not already aware of. Therefore, we find no error in the ruling of the trial judge.

      . La.R.S. 16:1 was amended in 1975 to conform to the language defining the powers and duties of district attorneys in La.Const. art. 5, § 26(B).

      . La.Code Crim.P. art. 63 provides:
      The district attorney may employ or accept the assistance of other counsel in the conduct of a criminal case.

      . Since Fuller dealt with a prosecution for third offense DWI, the language in that case might be dictum, but even there, without the need as we have here to interpret the statute in a constitutional manner, we stated that in context the district attorney and the city prosecutor have concurrent jurisdiction over first and second offense DWI prosecutions arising out of incidents occurring within the municipality.

      . I assume that the majority is referring to the date marked on the front of the advance sheets, but that too is unclear.


author: PER CURIAM.

text:
    STATE of Louisiana v. Michael BICKHAM.
    No. 58879.
    Supreme Court of Louisiana.
    April 20, 1977.
    Philip E. O’Neill, Orleans Indigent Defender Program, Metairie for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John AUDRICT.
    No. 58885.
    Supreme Court of Louisiana.
    April 20, 1977.
    Lee R. Leonard, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eddie W. NORTHCUTT.
    No. 58910.
    Supreme Court of Louisiana.
    April 20, 1977.
    Wilbert E. McReynolds, De Ridder, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Pegues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Albert Jennings "Red” MALVO.
    No. 58918.
    Supreme Court of Louisiana.
    April 20, 1977.
    James C. Mclnnis, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., A. J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The case is remanded to the trial court for consideration of the motion for a new trial.


text:
    STATE of Louisiana v. Bobby SMITH.
    No. 58960.
    Supreme Court of Louisiana.
    April 20, 1977.
    Philip E. O’Neill, Orleans Indigent Defender Program, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Theodore JACKSON.
    No. 58981.
    Supreme Court of Louisiana.
    April 20, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise L. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Edward TUCKERSON.
    No. 59017.
    Supreme Court of Louisiana.
    April 20, 1977.

      Philip E. O’Neill, Orleans Indigent Defender Program, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Robert L. GODFREY.
    No. 59018.
    Supreme Court of Louisiana.
    April 20, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lawrence WATKINS.
    No. 59040.
    Supreme Court of Louisiana.
    April 20, 1977.
    Thomas W. Mull, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Norris FANGUY.
    No. 59045.
    Supreme Court of Louisiana.
    April 20, 1977.
    Larry P. Boudreaux, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM. TATE, Justice,

text:
    STATE of Louisiana v. Thalia Dawn MASTERS.
    No. 59046.
    Supreme Court of Louisiana.
    April 20, 1977.
    Charles Gary Blaize, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, J., also assigns concurring reasons.

TATE, Justice,

concurring.

I concur in the affirmance of the conviction.

However, with regard to the assignment of terror urging that perjured testimony was used by the state to secure the conviction, it may be appropriate to note that this contention was not presented to the trial court by a motion or a new trial. The motion may, however, still be filed in the trial court within a year of the verdict, see La.C.Cr.P. art. 853. Only after the trial court’s ruling on such motion will the issue be presented for review by this court.


text:
    STATE of Louisiana v. Rubin TACKNO and Milton Armstead.
    No. 59053.
    Supreme Court of Louisiana.
    April 20, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Kirby G. POOLE.
    No. 59054.
    Supreme Court of Louisiana.
    April 20, 1977.
    Philip E. O’Neill, Orleans Indigent Defender Program, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Israel F. FLORES.
    No. 59059.
    Supreme Court of Louisiana.
    April 20, 1977.
    Bruce B. McKeithen, Lacroix & McKeithen, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Michael E. RUSSELL.
    No. 59068.
    Supreme Court of Louisiana.
    April 20, 1977.
    Philip E. O’Neill, Orleans Indigent Defender Program, Metairie for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Jimmie MOORE.
    No. 59069.
    Supreme Court of Louisiana.
    April 20, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. LEGISLATIVE BUDGET COMMITTEE et al.
    No. 59726.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: State of Louisiana through William J. Guste, Jr., Attorney General applying for writ of certiorari.

Granted.

DIXON, J., is of the opinion that the application should not be considered at this time.

DENNIS, J., is of the opinion that the writ should not be granted because applicant has an adequate remedy by appeal.


text:
    Zelia ACOSTA v. John DOE and the Louisiana Coca-Cola Bottling Co., Ltd.
    No. 59592.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Zelia Acosta applying for certiorari, or writ of review, to the Court of Appeal, 342 So.2d 1241, Fourth Circuit, Parish of St. John the Baptist.

Writ denied. On the facts found by the court of appeal, there is no error of law in its judgment.

TATE, J., is of the opinion that the court of appeal erred in disturbing the trier of fact’s reasoned evaluation of the facts of the injury and its much — discretion in the award of damages therefor.

DIXON, J., is of the opinion the writ should be granted.

DENNIS, J., is of the opinion the writ should be granted.


author: TATE, J.,

text:
    SOUTHWEST SALES AND MANUFACTURING CO., INC. v. DELTA EXPRESS, INC. and D. E. Lester, Jr.
    No. 59623.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Delta Express, 1‘nc. and D. E. Lester, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches.

Writ denied. The result is correct.

TATE, J.,

based on the showing that the pleadings as a whole in suit leading to the judgment annulled prevented a valid default judgment therein (as if no answer had been filed), I cannot say the court of appeal erred in granting a judgment of nullity. La.C.C.P. art. 2002(2).


text:
    STATE of Louisiana v. John MURPHY.
    No. 59633.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: State of Louisiana, applying for writ of certiorari, prohibition and mandamus.

Writ denied. No error in the ruling of the trial court.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


text:
    Honorable John S. COVINGTON v. Col. Malcolm MILLET, Secretary of Public Safety and Lt. Leon B. Millet, Louisiana State Police.
    No. 59647.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Col. Malcolm Millet, etc. and Lt. Leon B. Millet, etc. applying for writ of prohibition and mandamus.

Writ denied. Relators failed to seek relief to this court from the order of trial judge dated January 26,1977. Hence, rela-tors have no cause to complain about the subsequent order holding them in contempt of court.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


text:
    Glenn SCHURR v. HOUSTON FIRE AND CASUALTY CO. et al. Marco MORALES v. HOUSTON FIRE AND CASUALTY CO., INC.
    No. 59701.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Glenn Schurr and Marco Morales applying for certiorari, or writ of review, to the Court of Appeal, 342 So.2d 1248, Fourth Circuit, Parish of Orleans.

' Writ denied. Under the facts found by the court of appeal, we find no error of law.

CALOGERO J., is of the opinion this writ should be granted.


text:
    STATE of Louisiana v. Ulyssess Charles FOBBS.
    No. 59677.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Ulyssess C. Fobbs, applying for remedial writs.

Writ denied. The relator has shown no necessity for this court to intervene in aid of the Texas or Federal courts in this matter.

DIXON, J., concurs in the denial. The application does not disclose what relief petitioner demands nor what relief this court can grant.


text:
    Arthur H. FLEMING v. John J. ROMERO.
    No. 59609.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Arthur H. Fleming applying for Certiorari, or writ of review, to the Court of Appeal, 342 So.2d 881, Third Circuit Parish of Iberia.

Application denied; the result is correct.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.

TATE, J.,

dissents from the denial of the

writ: I am of the opinion that the defendant’s agreement to sell was timely accepted in writing by the plaintiff’s attorney (as well as the defendant’s acceptance of a deposit), for the reasons stated by the trial court.


text:
    STATE of Louisiana v. Truman Eldin McDONALD.
    No. 59540.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Truman Eldin McDonald, applying for remedial writs.

Granted. Evidentiary hearing ordered on whether double jeopardy applies under State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).

SANDERS, C. J., dissents from the granting of the writ.

SUMMERS, J., dissents from the granting of this evidentiary hearing.

MARCUS, J., dissents from the granting of this writ.


text:
    STATE of Louisiana v. Thomas Paul LUKEFAHR.
    No. 59795.
    Supreme Court of Louisiana.
    April 28, 1977.
   In re: Thomas Paul Lukefahr applying for writs of certiorari, mandamus and prohibition, and stay order.

Writ denied. There is no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana v. Robert Earl GAGE.
    No. 59801.
    Supreme Court of Louisiana.
    May 2, 1977.
   In re: Robert Earl Gage applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. As to the motion for preliminary hearing and motion to quash there is no error in the ruling of the trial judge. As to the motion to suppress, there is an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana ex rel. Bobby T. SMITH v. Theo POE, Sheriff.
    No. 59802.
    Supreme Court of Louisiana.
    May 3, 1977.
   In re: Bobby T. Smith, applying for writs of review, mandamus and certiorari.

Writ granted. It is ordered that the relator Bobby T. Smith, be released on the same bond pending sentence and appeal.


text:
    STATE of Louisiana v. Blaine J. LEMOINE, Jr.
    No. 59757.
    Supreme Court of Louisiana.
    May 3, 1977.
   In re: Blaine J. Lemoine, Jr., applying for writs of certiorari, prohibition, mandamus and stay order.

Writ granted in part. It is ordered that the bond hearing be reopened to permit the parties an opportunity to introduce evidence of the other factors set forth in La. Code Crim.P. art. 317 for determining the amount of bail.


text:
    Warren SNYDER et al. v. SCOTT CHOTIN, INC., et al.
    No. 59814.
    Supreme Court of Louisiana.
    May 3, 1977.
   In re: Vaughn J. Dodge, et al., third party defendants applying for writs of mandamus, certiorari or review.

Writ denied. The ruling of the trial judge is correct.


text:
    W. H. FRANKLIN v. CANECO CONSTRUCTION, INC.
    No. 59629.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: W. H. Franklin applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 341 So.2d 1339.

Writ refused. No error of law.


text:
    STATE of Louisiana v. Amy GASPARD.
    No. 59649.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Amy Gaspard, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Application denied. There is no error of law in the ruling complained of.


text:
    CITY BANK & TRUST COMPANY v. CANECO CONSTRUCTION, INC.
    No. 59627.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: City Bank & Trust Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 341 So.2d 1331.

Writ refused. No error of law.


text:
    Mary Ellen COOK v. NATCHITOCHES PARISH SCHOOL BOARD.
    No. 59624.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Mary Ellen Cook applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 342 So.2d 702.

Writ denied. Judgment of the Court of Appeal is correct.


text:
    In re GRAND JURY SUBPOENAS.
    No. 59697.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Writ denied. We have received information that the prosecutions have been terminated. Therefore, the application is apparently moot.


text:
    STATE of Louisiana v. George M. D’ARTOIS.
    No. 59818.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: George M. D’Artois applying for writs of certiorari, prohibition and mandamus.

Writ granted in part: The accused is entitled to a prompt hearing of his preliminary examination. La.C.Cr.P. arts. 292, 293. Construing the state’s request for a continuance as based on the unavailability of witnesses for tomorrow’s hearing, the trial court is ordered to hold the hearing on the preliminary examination beginning no later than 2:00 p.m., Monday, May 9th.


text:
    Mrs. Vera Mae ROBINSON et al. v. BEAUREGARD PARISH POLICE JURY.
    No. 59631.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Mrs. Vera Mae Robinson, et al., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Beauregard. 342 So.2d 696.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Chester FRANK v. Elin PITRE, Sheriff of Evangeline Parish.
    No. 59630.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Elin Pitre, Sheriff of Evangeline Parish applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 341 So.2d 1376.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Edward L. KENNEDY and Matthew Larry.
    No. 59606.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Edward L. Kennedy and Matthew Larry applying for writs of certiorari, prohibition, mandamus and stay order.

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


text:
    Succession of Annie M. NORTON.
    No. 59693.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Rosalie Norton Roberts, et ah, applying for writs of certiorari or review.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Gayle K. Hamilton, Judge of the First Judicial District, Court for the Parish of Caddo to transmit to the Supreme Court of Louisiana, on or before the 25th day of May, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 6th day of September, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. David Hill LAWRENCE.
    No. 59646.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: David Hill Lawrence, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable James C. Terrell, Judge of the 30th Judicial District, Court for the Parish of Vernon, to transmit to the Supreme Court of Louisiana, on or before the 25th day of May, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 9th day of September, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Succession of Annie M. NORTON.
    No. 59626.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: Commercial National Bank in Shreveport, etc., et al., applying for writ of certiorari or review.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Gayle K. Hamilton, Judge of the First Judicial District, Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 25th day of May, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 6th day of September, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. John LANGFORD.
    No. 59656.
    Supreme Court of Louisiana.
    May 4, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Writ granted. The judgment granting the motion to quash is vacated and reversed, and the relief prayed for by the State is granted.


text:
    FIRST NATIONAL BANK OF COMMERCE v. The WATERGATE, INC. and Williams Blvd. Land Company.
    No. 59690.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Crescent Pile Driving Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 343 So.2d 360.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. Kenneth E. PICKERING, the Louisiana Commissioner of Financial Institutions.
    No. 59709.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Kenneth E. Pickering, applying for writs of certiorari, prohibition and mandamus.

Pretermitting the question of timeliness, the application discloses no error in the ruling of the trial judge.


text:
    Lilion M. WILLIAMS v. Tommie L. MORRIS, Morrison Cab Service and Nola Bonding Co.
    No. 59700.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Lilion M. Williams, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 343 So.2d 373.

Writ denied. On the facts found by the Courts below, the result is correct.


text:
    Mary Louise TUCKER et al. v. The CITY COUNCIL FOR the CITY OF NEW ORLEANS et al.
    No. 59699.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Mary Louise Tucker, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 343 So.2d 396.

Writ denied. No error of law.


text:
    KOHLMEYER & CO., in Liquidation Through its Liquidators, Herman S. Kohlmeyer, Sr., Morris W. Newman and Robert J. Newman v. Edgar L. BRAUD, William Perry Brown, Sr., Sam Cahn, Thomas L. Duffy, Robert H. Kremer, Eugene L. Mauro, G. Fuhrman Nettles, III, Charles L. Odence and Allen M. Wager. KOHLMEYER & CO., in Liquidation Through its Liquidators, Herman S. Kohlmeyer, Sr., Morris W. Newman and Robert J. Newman v. Robert R. WOLF.
    No. 59691.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Thomas L. Duffy, Robert H. Kremer and Charles L. Odence applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 1253.

Writ refused. Since the Court of Appeal has overruled an exception and remanded the case for further proceedings, the judgment is not final.


text:
    KOHLMEYER & CO., etc., et al. v. Edgar L. BRAUD et al. KOHLMEYER & CO., etc., et al. v. Robert R. WOLF.
    No. 59696.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Edgar L. Braud applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 1253.

Writ refused. Since the Court of Appeal has overruled an exception of no cause of action and remanded the case for further proceedings, the judgment is not final.


text:
    Neila LeBlanc, Wife of Eugene James Loyacano v. Eugene James LOYACANO.
    No. 59688.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Neila LeBlanc Loyacano applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 343 So.2d 365.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Vickey Ann ESTEVE v. ALLSTATE INSURANCE CO. et al.
    No. 59676.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Maryland Casualty Co. and Vickey Ann Esteve applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 343 So.2d 353.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Katherine E. LANDRY et al. v. PARISH OF EAST BATON ROUGE et al.
    No. 59673.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Parish of East Baton Rouge and Parish Council of the Parish of East Baton Rouge applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 207.

“It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Floyd P. JACOBS v. 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, State of Louisiana.
    No. 59343.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Floyd P. Jacobs applying for writ of mandamus.

Granted.

On considering the petition of the relator, Floyd P. Jacobs, in the above entitled and numbered matter and further considering the fact that his petition for habeas corpus apparently was never filed in the district court,

It is ordered that the district court, Parish of Jefferson rule on this petition, copy of which is attached, forthwith, advising this court the result of their determination.


text:
    STATE of Louisiana ex rel. Albert CLARK v. Hon. Frank A. MARULLO, Judge, Criminal District Court, Section "D" Orleans Parish.
    No. 59667.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Albert Clark applying for remedial writs.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Frank A. Marullo, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 27th day of May, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a future date to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Patricia BLAIR v. Calvin DIAZ, Carlton Picou and the Carver Realty Company.
    No. 59692.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Calvin Diaz applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 1237.

Writ denied. There is no error in the judgment of the Court of Appeal insofar as this applicant is concerned.


text:
    CHARTRES CORPORATION v. Jack A. HONEYCUTT, d/b/a Commercial Contractors.
    No. 59689.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Chartres Corp., applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 1251.

Writ denied. The result is correct.


text:
    William WACTOR v. GURTLER HEBERT CONSTRUCTION CO.
    No. 59681.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Gurtler Hebert & Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 343 So.2d 383.

Writ denied. The result is correct.


text:
    HUGH O’CONNOR, INC. v. J. ROBERT AUTENREITH, INC. and Plumbers and Steamfitters Local 60 Home Association, Inc.
    No. 59664.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Hugh O’Connor applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 343 So.2d 1090.

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