text:
    STATE of Louisiana v. Alvin DANIELS.
    No. 56744.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.

      Bernard S. Dolbear, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Alvin Daniels was convicted after a trial by jury for the armed robbery of Flo Bankston. After trial and a unanimous guilty verdict, he was sentenced to be imprisoned at hard labor for thirty years without benefit of parole, probation or suspension of sentence. On this appeal he relies upon three assignments of error for reversal of his conviction and sentence.

Assignment of Error No•. 1

At 7:59 on the morning of February 3, 1975, Flo Bankston reported to the Sheriff’s department that she had been robbed at her grocery store located approximately three miles east of the town of Areola in Tangipahoa Parish. The robber was carrying a lunch pail from which he drew a snubnosed handgun during the course of the robbery. He escaped and was apprehended a week later. Flo Bankston was asked to attend a line-up at the courthouse on February 18, 1975. At that time she was told that she was to see if the robber was in the group. She was shown into the line-up and immediately identified Alvin Daniels as the robber. The public defender had been appointed to represent the defendant and was present at the line-up.

Prior to trial, defense counsel filed a motion to suppress evidence of the line-up identification, alleging that the line-up was conducted in an unconstitutionally suggestive manner because it was not composed of individuals with sufficiently similar physical characteristics and because Flo Bankston was subjected to “impermissible suggestions.”

A hearing was held on the motion to suppress. No evidence was produced by the defense to support the motion. After the State established the circumstances surrounding the line-up, including the introduction of a photograph of the line-up, the motion to suppress was denied and this assignment of error was reserved.

Part of the defense contention that the line-up was impermissibly suggestive is based upon one answer by the victim Flo Bankston to a question propounded by defense counsel at the hearing on the motion to suppress:

“Q. Now, do you remember exactly ' what was told to you when you were asked to come to that lineup?
A. .They told me that there would be a line-up of six men and that I would pick him out of that six. Wouldn’t have any trouble doing it.”

This argument, however, disregards the explanation of this testimony immediately following in which defense counsel asked, “And you were told that he would be one of! the six men?” Flo Bankston answered: “They said (sic) was going to be a line-up and see if he is in that group and that is what I did.” (emphasis added).

Taken as a whole, Flo Bankston’s testimony makes it clear that she was not subjected to “impermissible suggestions.” As explained, her testimony is to the effect that she was told by the officer conducting the line-up that she was to see if, the person who robbed her was in the group of six men composing the line-up. This she did.

The contention that the persons composing the line-up were physically dissimilar is also without merit. Travis Dykes, the deputy sheriff who arranged the line-up, testified that he made every effort to include people with similar builds, similar complexions and different hair styles. Raymond Carr assisted in picking out the men for the line-up. A photograph of the line-up in the record satisfactorily demonstrates that there was no deliberate effort to select persons with marked dissimilarities to suggest the identity of the defendant. Four of the men are of almost identical height. Defendant is one of these. Two others are taller. They are all generally of the same complexion and build. None were dressed like the robber at the time of the robbery.

Understandably, it is impracticable to accomplish strict similarity in these line-ups. Sufficient similarity is demonstrated to negative a conclusion that the line-up was deliberately designed to suggest the defendant’s identity.

Although the issue was not raised by the motion to suppress the line-up identification, defense counsel argues, for the first time in brief, that the prosecution did not establish that probable cause existed to place defendant Alvin Daniels in jail and subject him to a line-up. This lack of probable cause to arrest, it is contended, vitiates the entire line-up identification proceeding.

The claimed irregularity or error in the proceeding cannot be availed of, for it was not alleged in the motion to suppress or otherwise urged before the trial judge who was, therefore, not given an opportunity to rule on the issue. La.Code Crim.Proc. arts. 841, 844, 920.

In any event, the reference to the .line-up identification procedure at the trial in June 1975 deprives the defendant of no constitutional or statutory right. Applying the tests outlined by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, (1967), wé are of the opinion Flo Bank-ston’s courtroom identification was based upon observations and knowledge gained by her independently of the line-up.

Identification was based principally upon the prior opportunity to observe the criminal act as it occurred, not the line-up identification. She was in close proximity to the defendant (over the counter) and observed him for some time as he shopped around the store; there was no discrepancy between her pre-line-up description and defendant’s actual description; she made no identification prior to line-up of another person; there was no identification of the defendant by picture prior to the lineup; there was no failure of Flo Bankston to identify the defendant on a prior occasion ; and there was no appreciable lapse of time between the alleged act and the line-up identification. State v. Allen, 251 La. 237, 203 So.2d 705 (1967).

Assignment of Error No. 2

Louis Little, Carl Johnson and David Alford were called as witnesses by the State. Little testified that on the morning of the robbery shortly before eight o’clock when he passed Flo Bankston’s store on his way to Amite, he saw a “colored fellow” coming out of the store carrying a pail, a lunch kit. He was within fifteen "feet of him as he passed and got a good look at him. He pointed out the defendant in the courtroom as the person he saw coming out of the Bankston grocery store on that occasion. Defense counsel objected that the identification had been made without a predicate having been established by the State. His objection was overruled.

Carl Johnson testified that he operated a Texaco Service station about two blocks from Flo Bankston’s store. He pointed to Daniels in court as the person who drove into his station about 7:30 on the morning of the robbery and got a dollar’s worth of gas. Defense counsel again objected to the in-court identification, arguing that the testimony was not admissible unless the State established a predicate for the identification. His objection was again overruled.

David Alford is a State Juvenile Probation and Parole Officer who live's less than half a block from the Bankston store. He was walking by the store about five minutes to eight on the morning of the robbery. . He noticed there were no cars at the store and observed someone walking down the ditch — “a black male, rather large build, and he had on a green — looked like a green, olive drab fatigue jacket on, lunch pail in his hand and sunshades.” When he was asked in court whether he could identify the person he saw that morning, he replied: “To be honest, I cannot, sir. The man sitting rightup here fits the general description of the man I saw walking.” To this testimony there was no defense objection.

As we understand the defense argument, the in-court identifications by Little and Johnson violate all principles of fair trial. It is asserted that the witnesses could not help but identify the defendant in court (presumably because he sat at the defense counsel’s side). Further, he argues, a proper predicate would require introduction into evidence of the weapon used by the robber, the checks, etc. Permitting this identification, he contends, deprives him of due process. It is also contended that an in-court identification should not be allowed unless the witness has previously identified the defendant in a line-up.

A defendant, who is undoubtedly a principal participant in a criminal trial, is required to be present and is conspicuously seated at his counsel’s table to assist in his defense. This does suggest, by his presence in court, that he is the defendant. But this circumstance does not indicate or unduly suggest to the witness, that defendant committed the crime, only that 'he is charged with its commission. Although the defendant’s presence in court is a factor to be considered by the jury in weighing the testimony of in-court identification, the testimony is not inadmissible for these reasons.

Defendant had the right, and exercised it thoroughly, to cross-examine the witnesses on their identification testimony, and we have held that he did not have the right to demand a line-up- prior to an in-court identification. State v. Brooks, 294 So.2d 503 (La.1974).

This assignment has no merit.

Assignment of Error No. 3

In this assignment, defendant seeks review of the refusal of the trial judge to sustain his motion for a directed verdict. As our treatment of this case demonstrates, there was abundant evidence to support conviction, and, therefore, this assignment is without merit. Only a total lack of evidence of the crime or some essential element thereof will support a directed verdict. State v. Douglas, 278 So.2d 485 (La.1973).

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


source: Caselaw Access Project

author: SANDERS, C. J., CALOGERO, J.,

license: Public Domain

text:
    Johnson L. HALE, Sr. v. Joseph R. GERACE, Administrator of the Division of Employment Security, etc.
    No. 57478.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   SANDERS, C. J.,

is of the opinion that a writ should be granted.

CALOGERO, J.,

is of the opinion the writ should be granted. Both lower courts are obviously wrong. The pension plan, from which plaintiff is receiving remuneration in the form of payments, is one “toward the cost of which” the .employer is contributing or has contributed. R.S. 23 :1601(7) (c). The result in this case cannot be defended on the basis that the Court of Appeal has found precluding facts, which facts are at variance with the reality that “the pension plan” (the Court of Appeal called it that) is one toward the cost of which the employer has contributed or is contributing. If the employer has contributed or is contributing to the pension plan, the result here is wrong under the statute. If it is seriously argued that the employer has not or is not contributing (but will do so only after the employee has received in pension payments all of what money he contributed to the plan) then we should at least view the transcript of the trial, by calling for applicant to furnish us a copy of same, before denying their writ.

DENNIS, J., dissents from the denial of the writ for the reasons assigned by CALOGERO, T.


author: MARCUS, Justice.

text:
    Lillie COLEMAN and Andrew Bean v, Edwina VICTOR.
    No. 56651.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.

      J. Arthur Smith, III, Baton Rouge, for plaintiffs-applicants.
    F. Louis Gonzales, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

This suit for damages arose out of an automobile collision between a 1970 Ford automobile owned by one of the plaintiffs, Lillie Coleman, and driven by her son and the other plaintiff, Andrew Bean, and a 1968 Buick owned and driven by defendant, Edwina Victor. The accident occurred on July 17, 1973 at the intersection of St. Joseph and Julia Streets in the City of Baton Rouge. Both the trial court and the court of appeal found that the collision was caused by the sole negligence of Edwina Victor. The trial court awarded $900 in special damages to Lillie Coleman and $405 for personal injuries to Andrew Bean. Included in the $900 awarded to Mrs. Coleman was $800 to cover the estimated cost of repair to her vehicle. Defendant Victor appealed. Plaintiffs answered the appeal, asking that the award to Mrs. Coleman for her. property damage be increased to $1,450, representing the difference between the value of the vehicle before the accident ($1,800) and the amount for which it was sold ($350) in December, 1973 (some five months after the accident). The court of appeal rejected this claim for an increased award for property damage on the ground that the cost of repair was the proper measure of damage but concluded, sua sponte, that Mrs. Coleman had not borne the burden of proving her property damage since the “only evidence regarding the amount necessary to repair the Ford was the self-serving, hearsay testimony of said owner.” Accordingly, the court of appeal amended the award to Mrs. Coleman by reducing it to $100, thus deleting the $800 for her property damage. In all other respects, the judgment of the trial court was affirmed. Upon plaintiffs’ application, we granted certiorari to review the court of appeal’s rejection of property damage to the Coleman vehicle.

ISSUES

• Two issues are presented for our review: first, the proper measure of property damage in this case; secondly, if the cost of repair is the correct measure of damage, did plaintiff-owner sufficiently prove this claim ?

I.

First, we consider the proper measure of property damage to the Coleman vehicle.

Every act of man that causes, damage to another obliges him by whose fault it happened to repair it. La.Civ.Code art. 2315. One injured throught the fault of another is entitled to full indemnification for damages caused thereby. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). This court in Lambert v. American Box Co., 144 La. 604, 81 So. 95 (1919) ably stated:

. . . The obligation of defendant, however, is to indemnify plaintiff — to put him in the position that he would have occupied if the injury complained of had not been inflicted on him. . . .

When property is damaged through the legal fault of another, the primary objective is to restore.the property as nearly as possible to the state it was in immediately preceding the damage, it is well settled that the measure of damage is the cost of restoring the property to its former condition. In assessing damage to property, generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired. Intermediate appellate courts have often attempted to formulate tests in assessing damage to property. In our view, no mechanical rule can be applied with exactitude in the assessment of property damage under article 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record.

With these principles in mind, we address ourselves to the proper measure of damage to the Coleman vehicle.

Plaintiffs urge that Lillie Coleman is entitled to $1,450, the difference between the value of the Ford before the accident ($1,800) and the sum for which it was sold by her in December of 1973 ($350) and not the cost of repair ($800).

It was established at trial that Mrs. Coleman’s 1970 Ford automobile was in good condition and had been driven about 59,000 miles at the time of the accident. After the accident, it was towed to Richard’s Ford where it remained until it was sold. According to expert testimony, an automobile similar to and in the same condition as the Coleman vehicle had a value of $1,800 as of July 17, 1973 (date of accident). On direct examination, Mrs. Coleman testified that her insurance had expired and that she did not have the necessary funds to have her car repaired. Further, she owed $1,100 to the bank on the car note and was unable to borrow money to have the car repaired. Also, she needed a car in her employment. Therefore, she sold the damaged Ford in December of 1973 for $350. During cross-examination by defense counsel, Lillie Coleman was asked the estimated cost of repair to her car, and she answered “about $800.” She stated that she was told that this was the amount needed for the repairs.

There is no proof in the record that the Coleman vehicle was totally demolished or a total loss. If such were the case, plaintiff-owner would be entitled to the market value of the vehicle before the accident less its salvage value, if any. By Lillie Coleman’s testimony, she chose for her own reasons, financial or otherwise, not to have her Ford repaired. Instead, some five months later, she sold it for the sum of $350. Plaintiffs erroneously refer to this sum as “salvage” value.

In Goode v. Hants, 209 La. 821, 25 So.2d 604 (1946), the district court fixed the award for damage to the vehicle by deducting from the market value of $1,689.10 “the salvage value” of the wrecked vehicle which was fixed at $500 by the garage man who had it in his charge. The court reduced the award to $743.61, stating that the court was convinced that the plaintiff, had he elected to do so, could have had his car fully repaired within several weeks after the accident for $743.61. Therefore, this amount represented the proper award for damage to plaintiff’s vehicle. We stated therein:

The rule of law has long been settled in this State that where an automobile is damaged, the owner is entitled only to the amount it will cost to place the machine in the same condition as it was before the accident. Folse v. Flynn, La.App., 200 So. 160; Potomac Ins. Co. v. Blaise, La.App., 181 So. 629; Dixon v. Futch, [La.App.,] 166 So. 205; Midlo v. Fairchild Motor Corporation, La.App., 158 So. 245; Sherwood v. American Railway Express Co., 158 La. 43, 103 So. 436; Lambert v. American Box Co., 144 La. 604, 81 So. 95, 3 A.L.R. 612; Bianchi v. Mussachi, 1 La.App., 291; Berry, Law of Automobiles, Vol. 5, Sec. 5.229, p. 361 and Huddy’s Ency. of Automobile Law, Vol. 17-18, p. 524.

As in Goode, we are satisfied from the record that the Coleman vehicle could have been repaired after the accident for $800 if the owner had elected to do so. This would have placed the vehicle in the same condition as it was before the accident. Thus, Mrs. Coleman is entitled only to the cost of repair, not the difference between the value of the vehicle prior to the date of the accident and the sum for which it was ultimately sold. Therefore, both the trial court and the court of appeal were correct in rejecting Mrs. Coleman’s claim of $1,450 for her property damage and in concluding that the cost of repair was the proper measure of damage in this case.

II.

Next, we consider whether the court of appeal erred in denying any property damage to Lillie Coleman on the ground that she had failed to prove this claim. In reaching this result, the court of appeal found that the only evidence regarding the cost of repair “was the self-serving, hearsay testimony” of the owner, Lillie Coleman.

A reading of the record makes it obvious that plaintiffs had taken a position that plaintiff-owner was entitled to the difference between the value of the Ford before the accident and the sum for which it was sold by the owner, or $1,450. Thus, initially, plaintiffs offered no evidence as to the cost of repair. On direct examination, Lillie Coleman was not questioned on this point except for her assertion that she could not, due to her financial condition at the time, afford to make the necessary repairs. Apparently, in an attempt to establish the cost of repair as the correct measure of damage rather than the larger sum claimed by the plaintiffs, defense counsel cross-examined Lillie Coleman in reference to the cost of repair as follows:

Q. Now, how much was the estimate of the repairs to your car ?
A. About eight hundred dollars, I’m thinking that’s what it was, about eight hundred.
Q. You didn’t try to find out the value of that car before repairs, did you?
A. I was just interest in my car, and I couldn’t borrow $800.00 to have it repaired. And I was told that that’s what I needed.

Later, the figure of $800 as the cost of repair was used by defense counsel in the examination of another witness and was also referred to by the trial judge.

It is well settled that plaintiff has the burden of proving by a preponderance of the evidence damages caused by defendant’s fault. As pointed out in Jordan v. Travelers Insurance Company, supra, the courts have used many terms in describing this burden of proof. We stated therein that:

. Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.

The trial judge considered that the testimony of Lillie Coleman regarding the cost of repair sufficiently sustained her burden of proving her property damage. The court of appeal, sua sponte, concluded that this was manifest error, as the testimony of Mrs. Coleman was self-serving, hearsay testimony which could not be considered. We find that the court of appeal erred in this respect.

Again, we must consider the context in which the $800 estimated cost of repair was introduced into the record. It was done by defense counsel’s cross-examination of the owner of the vehicle in order to establish a lesser sum upon which damages should be assessed. Thus, whether self-serving or hearsay, it became competent evidence. It was relevant and material and uncontradicted. In fact, the $800 estimated cost of repair was later referred to by defense counsel in questioning another witness as well as by the court. Under these circumstances, we consider that defendant has effectively waived any right to complain about the competency of this evidence. Moreover, uncontradicted hearsay testimony of a single witness, admitted without objection, may properly be considered and given probative value. Wainer v. Wainer, 210 La. 324, 26 So.2d 829 (1946); Gray v. Great American Indemnity Company, 121 So.2d 381 (La.App.1st Cir. 1960). Likewise, self-serving declarations, admitted without objection, may be considered.

Therefore, Lillie Coleman’s testimony regarding the cost of repair was properly considered and given probative value by the trial judge. We cannot say that he erred in concluding that this uncontradict-ed evidence was sufficient to establish plaintiff-owner’s claim for her property damage. Accordingly, we hold that the court of appeal erred in denying the $800 award for property damage to Lillie Coleman.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to include the $800 award for property damage, thus increasing the award to Lillie Coleman to $900, and, as thus amended, the judgment of the court of appeal is affirmed. All costs are assessed against Edwina Victor.

      . 314 So.2d 412,

      . 318 So.2d 56.

      . Lambert v. American Box Co., 144 La. 604, 81 So. 95 (1919); Hayward v. Carraway, 180 So.2d 758 (La.App.1st Cir. 1965), cert. denied, 248 La. 909, 182 So.2d 662 (1966).

      . Three tests have been utilizd in determining property damage: (1) cost of restoration, if the damage item can be adequately repaired; (2) value differential, difference in value prior to and subsequent to the damage; (3) cost of replacement, less depreciation, if the value before and after the damage cannot be reasonably determined or if the cost of repair is more than the value. Peak v. Cantey, 302 So.2d 335 (La.App.1st Cir. 1974); Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App.3d Cir. 1973); Aetna Insurance Company v. Palao, 263 So.2d 394 (La.App.4th Cir.1972); Granger v. Bouillion, 220 So.2d 764 (La.App.1st Cir. 1969); Taylor v. Allstate Insurance Company, 205 So.2d 807 (La.App.1st Cir. 1967); Keating v. Boyce Machinery Corp., 196 So.2d 623 (La.App.1st Cir. 1967).

      . See Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

      . Bernard v. Fidelity & Casualty Company of New York, 186 So.2d 904, 18 A.L.R.3d 493 (La.App.1st Cir. 1966).

      . There is no proof of any depreciation to the vehicle which might have resulted from the repairs caused by the accident.


author: CALOGERO, Justice.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Cecil R. TYLER et al.
    No. 56649.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Aubrey L. Moore, Glusman, Moore & Lopez, Baton Rouge, for defendants-applicants.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Charles E. Pilcher, Baton Rouge, for plaintiff-respondent.
   CALOGERO, Justice.

In this expropriation suit we granted writs upon application of defendant property owners to review a decision of the First Circuit Court of Appeal which had considerably reduced an award made by the Twenty-First Judicial District Court for the Parish of Livingston.

The property of defendants Cecil R. Tyler, William R. Copeland and Joseph L. Mallett, was located in Denham Springs, Louisiana. It was bounded on the west by a two-lane, blacktop road designated Range Road, which connected U.S. Highway 190 with the newly constructed Interstate Highway 12.

The property before the taking was a single rectangular parcel containing 37.1 acres, fronting about 1100 feet on the east side of Range Road with a depth of about 1300 feet running east.

The part taken consisted principally of a strip approximately 15 feet in depth along the entire frontage on Range Road, containing 0.429 acres. Additionally, three minute parcels totalling 0.019 acres, and located at various points just behind and adjoining the first parcel, were taken for drainage servitudes. Temporary construction servi-tudes were taken on five small parcels of land totalling 0.1075 acres. And a drainage servitude was taken over a 40 foot strip running east from Range Road and located about 200 feet south of the north boundary of the original tract, having an area of 1.321 acres. After completion of the project Range Road was a four-lane divided concrete highway.

The trial court had fixed the value of the part taken at $12,457.37 and severance damages at $35,684.31 for a' total compensation of $48,141.68. The $12,457.37 sum was based upon a per acre valuation of the subject property of $7,059.00.

The Court of Appeal in reviewing this element of the trial court award concluded that the fair market value for the part taken was $3,200.00 per acre, based in some measure upon use as a comparable of defendants’ very acquisition of the property just three months before the taking for $2600 per acre. With this finding by the Court of Appeal that the part taken was valued at $3200 per acre for a total sum of $5,741.00 we have no disagreement. The Court of Appeal opinion adequately and correctly discusses the factors which support that finding, including the testimony of appraisers for both plaintiff and defendant.

What prompted our granting of writs in this case, however, was the decision of the Court of Appeal to disallow in its entirety the $35,684.31 in severance damages, fixed by the trial court.

The Louisiana Constitution of 1921, Art. 1, Sec. 2, which was in effect at the time of this taking, provides that private property shall not be “taken or damaged” unless “just and adequate compensation is paid.” Just compensation for property taken is the fair market value thereof immediately prior to the taking without any enhancement by virtue of the purpose of the taking. State through Department of Highways v. Trippeer Realty Corp., 276 So.2d 315 (La.1973); State through Department of Highways v. Hayward, 243 La. 1036, 150 So.2d 6 (1963). Where a tract of land is partially taken, the landowners are entitled to any resulting damage to the remainder. These “severance damages” are given in addition to the award for the land actually taken. Louisiana Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974); Trippeer Realty Corp., supra. The burden of proving severance damages is on the property owner. Trippeer Realty Corp., supra; United Gas Pipe Line Co. v. Landry, 228 So.2d 565 (La.App.lst Cir. 1969).

The expropriation in this case was pursuant to the provisions of the Highway “Quick Taking Statute” in effect at the time of the expropriation and the trial. Louisiana Acts 1954, No. 107, § l. The statute provided that severance damages were to be determined as of the date of trial. The test developed by jurisprudence to measure severance damages under this provision, however, was the difference between the market value of the remaining property before and after the taking. State through Dept. of Highways v. M. G. Real-La. 1035, 229 So.2d 89 (1969); State through Dept. of Highways v. M. G. Realty Co., 276 So.2d 918 (La.App.3rd Cir. (1973).

In the present case, prior to the taking, the landowners had a single, more or less rectangular 30 acre tract of land, approximately 1100 feet along Range Road with a depth of 1300 feet. The state has now expropriated a 40 foot servitude extending from Range Road east across the entirety of the property with an S-turn on the eastern end. In this 40 foot servitude, the Department of Highways dug a ditch 35 feet across. As we appreciate the facts of this case, the ditch cut across a high portion of the property and did not coincide with the natural drainage. As a result of this drainage servitude, the property owners were left with a 6.54 acres remainder north of the servitude and a 27.73 acres remainder south of the servitude. Thus they now own two smaller parcels, rather than one large tract.

The two appraisers for the Department of Highways found no severance damages. Both Mr. Carlock and Mr. All-phin were of the opinion that no consequential or severance damages were caused by the taking. Their only reference or reason for this conclusion was that the servitude did not interfere with the natural drainage of the property. Mr. Carlock also stated at trial that in his opinion the value of the property was enhanced by the improvement of Range Road.

Both appraisers for the landowners, Mr. Carpenter and Mr. Graham, found severance damages. The trial court, in awarding severance damages, adopted Mr. Carpenter’s appraisal that such damages amounted to $35,684.31. Mr. Carpenter’s-opinion in this regard was based upon a comparison of a post-expropriation sale of 6.11 acres of the tract in question situated on the north side of the property about 500 feet east of Range Road and straddling the drainage servitude, with a post-expropriation option to purchase a similar size tract on the southern portion which did not straddle the drainage servitude. Because the sale was for $5,990.00 an acre and the option was for $7,000.00 per acre, he was of the opinion that the entire 35.331 acres remainder had been damaged to the extent of $1,010.00 per acre.

We find little logic in Mr. Carpenter’s reasoning that, because a tract which straddled the ditch sold for a smaller sum than was expressed in an option on a tract which did not, each acre of the entire remainder was therefore damaged by a per acre sum equal to the difference in the per acre valuation of the sale and the option. Not every future sale of portions of the remainder will necessarily involve tracts which are divided by the ditch. Indeed the very tract which was the subject of the option was not in the vicinity of the ditch, and ostensibly did not suffer the $1,010 per acre reduction in value. Furthermore, an option is clearly something very different from an actual sale and is not an appropriate comparable without a more complete factual determination as to persons who took the option, why it was taken and why it was or was not exercised. We, therefore, reject the trial court’s award of $35,684.31 in severance damages.

Nevertheless, we are convinced that the property owners in this case did suffer some damage as a direct result of the bisection of their property by the drainage servitude. Common sense dictates that this large tract of approximately 35 acres would likely have more versatile use and potentially bring more on the market than two smaller tracts divided by a fairly wide drainage ditch.

Mr. Graham, the second appraiser for the landowners, calculated $41,700.00 in severance damages by employing a different formula than the one used by Mr. Carpenter. He reasoned that the northern portion of the property, which was now a small tract of 6.54 acres and thus restricted in the type of úse to which it could be put, sustained a 20% reduction in value, and that the south portion of 27.73 acres, which was still fairly large but not as attractive for development purposes as a 35 acre tract would be, sustained a 10% reduction in value.

We conclude that there is merit in applying this 20%-10% reduction in value theory to the facts of the instant case. These percentages, however, should not be applied to the valuation of $9,000.00 per acre as suggested by Mr. Graham, but rather to the $3,200 per acre valuation employed by the Court of Appeal in determining the fair market value of the part taken, the per acre valuation which we have concluded is proper. Applying this reasonable valuation, the severance damages for the north remainder are $4,185.60 and for the south remainder are $9,533.60, for a total of $13,719.20.

Although Mr. Graham’s 20%-10% reduction in value theory, as applied in this case, in not precisely accurate as to every acre of the property nor supported by extensive factual data, we are satisfied that it is a reasonable opinion which comports in result with the facts on the record and with our common sense belief that the subject property sustained severance damages equal to approximately a 12% reduction in value for the entire remainder. Under the Louisiana Code of Civil Procedure, this Court has a mandate to “render any judgment which is just, legal, and proper upon the record on appeal.” (Emphasis added) La.C.C.P. art. 2164. We have examined the record carefully and have concluded that an award of severance damages in the sum of $13,719.20 is appropriate in this case.

For the reasons assigned the judgment of the Court of Appeal is reversed in part and affirmed in part. The defendants are awarded $5,741.00 as the fair market value for the part taken and $13,719.20 as severance damages, for a total of $19,460.20 subject to a credit for the $2,870.00 heretofore deposited by plaintiff. As amended, the judgment is affirmed. All costs of this litigation which are legally assessable are to be paid one-half by the plaintiff and one-half by the defendants.

Amended and affirmed.

      . These statutory provisions were amended and reenacted by Acts 1974, Ex.Sess. No. 30, § 1 as La.R.S. 48:441 to 48:460. The effective date of the new provisions was January 1, 1975.

      . The new provisions of the Highway “Quick Taking Statute” spells out the measure of compensation in La.R.S. 48:453:
      “B. The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.”

      . The natural drainage system prior to the taking was in the form of a ditch which ran from north to south along Range Road and then east down the south property line.

      . An expropriating authority is allowed to offset against severance damages any special benefits accruing to the remainder of the property. Special benefits are those which arise from the peculiar relationship of the land in question to the public improvement, which will result from the taking. La. Highway Commission v. Grey, 197 La. 942, 2 So.2d 654 (1941). The expropriating authority has the . burden of proving these special benefits. State through Department of Highways v. Trippeer Realty Corp., 276 So.2d 315 (La.1973); State through Department of Highways v. Central Realty Co., 238 La. 965, 117 So.2d 261 (1960). The state made no attempt .to prove special benefits in this case.

      . Calculating the 6.54 acres north remainder at $3200 per acre gives a total value of $20,928.00. The 20% reduction in value is, therefore, $4,185.60. Calculating the 27.73 acre south remainder at $3200 per acre gives a total value of $95,336.00. The 10% reduction in value is, therefore, $9,533.60.

      . The total $13,719.20 reduction in value is equal to approximately 12% of the overall value of the remainder, calculated at the $3200 per acre valuation accepted by us today.


author: SANDERS, Chief Justice. DIXON, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. Robert WILKERSON.
    No. 56862.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      William E. Woodward, Leslie D. Ligón, Jr., Clinton, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The West Feliciana Parish Grand Jury indicted Grady Brewer and Robert Wilkerson for murder in violation of LSA-R.S. 14:30. After trial, the jury returned a verdict of guilty as charged. The court sentenced defendants to life imprisonment. Defendants appealed their convictions, and this Court reversed Wilkerson’s conviction. La., 301 So.2d 630 (1974).

On December 19, 1974, Wilkerson was rearraigned and pleaded not guilty. A motion for change of venue was heard and denied on January 9, 1975. The defendant was tried and found guilty as charged by the jury. After denying Wilkerson’s motion for a new trial, the court sentenced him to life imprisonment.

Defendant Wilkerson appeals his second conviction and sentence, relying on six assignments of error.

ASSIGNMENT OF ERROR NO. 1

When asked by the State if he knew anything about the case, the prospective juror answered, “I heard it had been to the Court of Appeal and is back for retrial.” Based upon that comment, the defendant moved for a mistrial. The court denied the motion, stating that it would admonish the jury to disregard the comment. Defendant reserved Assignment of Error No. 1 to the court’s ruling. Code of Criminal Procedure Article 771 provides in pertinent part:

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

The defendant concedes that the prospective juror’s remark alone would not necessarily require granting a motion for a mistrial. He argues that the fact that the defendant was handcuffed, gagged, shackled and in leg irons at the first trial was public knowledge, and the prospective juror’s statement could only serve to remind the prospective jurors of the prejudicial conduct which occurred during the first trial. This argument is without merit as it is extremely unlikely that the comment drew attention to that conduct; it neither directly or indirectly referred to what happened at trial fifteen months earlier. It is even more unlikely that the jury of laymen understood the legal implications regarding conviction and appeal which the comment could have raised. Moreover, the defense counsel actually asked the judge not to instruct the jury to disregard the comment. In view of the defendant’s request and his concession that the remark alone would not require granting a mistrial, the defendant cannot now be heard to complain.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant assigns as error the court’s refusal to grant his challenge for cause of a prospective juror who in former years had been employed as a security guard at the Louisiana State Penitentiary.

In his per curiam, the trial court judge stated that the defendant cannot complain of the ruling because he did not exhaust his peremptory challenges in compliance with Code of Criminal Procedure Article 800. In brief, defendant asserts that he did exhaust his peremptory challenges. The record in this court is insufficient to determine whether the peremptory challenges were in fact exhausted. Assuming, without deciding, that they were exhausted, we address the assignment of error.

Code of Criminal Procedure Article 797, dealing with the challenges for cause, provides :

“The state or the defendant may challenge a juror for cause on the ground that :
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the •evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.”

The prospective juror, though once employed as a security guard at the penitentiary, discontinued his employment nearly five years before the trial. The prospective juror was examined thoroughly on voir dire and stated that he was not prejudiced against prisoners. His answers establish that he could accord the defendant a fair trial.

It is within the sound discretion of the trial judge to determine the competency of a juror, and only when the exercise of his discretion is arbitrary or unreasonable is this Court warranted in setting aside a verdict. State v. Weathers, La., 320 So. 2d 895 (1975); State v. Frazier, La., 283 So.2d 261 (1973).

We find no error here.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

The defendant assigns as error the court’s refusal to allow questioning of an inmate at Angola who witnessed Wilkerson murder another inmate, concerning possible bias, interest, and corruption.

LSA-R.S. 15:492 provides:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.”

The court removed the jury and thoroughly explored all possibilities concerning the examination of the witness. The court concluded that it would allow the defendant to ask the witness if he was given or promised anything in exchange for his testimony.

The background facts of this case are extremely relevant to this assignment of error. The prosecuting witness saw inmate-Wilkerson murder a fellow inmate. The witnessing inmate, fearing for his life, requested to be moved from that location for protection. The showing outside the presence of the jury indicated that the line of questioning would disclose Wilkerson’s previous trial and conviction for the murder of that inmate and the witness’s fear of Wilkerson.

In this case, the trial court judge correctly disallowed both parties further pursuing this line of questioning to the prejudice and ultimate detriment of the defendant. However, the trial court did allow the defendant to ask the witness if he was promised or given anything in exchange for his testimony. This question adequately safeguards the statutory right to cross-examine a witness concerning possible bias, interest, and corruption.

Assignment of Error No. 5 deals with the court’s ruling that the defendant could not ask the same witness questions concerning self-mutilation. This testimony would not be admissible under LSA-R.S. 15:492; thus, the trial court correctly disallowed the question.

Assignments of Error Nos. 4 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant reserved Assignment of Error No. 6 to the court’s denial of his motion for a directed verdict. The recent case of State v. Brumfield, La., 319 So.2d 402 (1975) restates the Court’s often repeated holding on this issue:

“This Court does not review questions of sufficiency of evidence so long as some evidence can be found in the record to support the verdict. State v. Douglas, La., 278 So.2d 485 (1973). Furthermore, it is well established in Louisiana jurisprudence that the refusal of a trial judge to grant a motion for a new trial which is based on an allegation that the verdict is contrary to the law and the evidence present nothing for this Court’s review. See, e. g., State v. Lisenby, La., 306 So. 2d 692 (1975); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Williams, 262 La. 160, 262 So.2d 507 (1972), and cases cited therein.”

A review of the record indicates that there is some evidence of all the essential elements of the crime. The State produced one eye witness who identified the defendant as being among the victim’s attackers, and another eye witness who testified that he saw the defendant stab the victim twice in the chest. There were only two wounds in the victim’s chest, and it was shown by the State’s expert witness that one of these two wounds was the cause of death.

ASSIGNMENT OF ERROR NO. 7

Defendant reserved Assignment of Error No. 7 to the denial of his motion for a change of venue. He alleges that a change of venue is necessary and bases his allegations on the following: (1) That widespread prejudice existed in the public mind against defendant as a consequence of the courtroom incident which resulted in his being handcuffed, shackled, and gagged during his first trial; (2) that a high percentage of persons making up the general venire were either employed by or related to employees of the Louisiana State Penitentiary at Angola or West Feliciana Parish Sheriff’s Office, and that defendant was incarcerated in maximum security at the Louisiana State Penitenitary; (3) that there was a general prejudice in West Fel-iciana Parish against inmates, conscious or unconscious, to which veniremen would not admit on voir dire examination.

Code of Criminal Procedure Article 622 provides the grounds for change of venue. It states:

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

An Official Revision Comment on that article states that “the change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire.” As noted by the trial judge, there is little evidence of general prejudice towards inmates. One witness testified on behalf of the defendant, while three witnesses testified that they knew of no prejudice in the public mind against the defendant. The witness who testified on behalf of the defendant himself stated that he was not prejudiced, although he felt that there was prejudice which would keep prospective juror’s from telling the truth on voir dire examination. The second and third of defendant’s allegations are, therefore, without merit.

His first allegation, discussed in Assignment of Error No. 1, is without merit for the reasons stated therein.

Assignment of Error No. 7 is without merit.

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

DIXON, Justice

(dissenting). Assignments Nos. 4 and 5, relative to restriction of cross-examination of an eyewitness, represent error, a clear violation of a statutory and constitutional right which requires reversal.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

I believe there is merit in Assignment of Error No. 4. The constitutional right to confrontation exercised most effectively by unrestricted relevant cross-examination was denied in this case when the trial court refused to allow defense counsel to impeach the credibility of a state’s key witness by interrogation of the witness as to his written correspondence with the director of corrections leading up to his testifying as a witness.

I therefore dissent.


author: DENNIS, J.,

text:
    Elsie S. LINDSEY et vir v. AETNA CASUALTY & SURETY CO.
    No. 57477.
    Supreme Court of Louisiana.
    Feb. 11, 1976
   DENNIS, J.,

recused because he performed a judicial act in the case in another court.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Clarence “Bill” McCORD a/k/a Bill Miller.
    No. 57508.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   SUMMERS, J.,

I am of the opinion the writ should be granted. I would not issue this ex parte order without giving the trial judge a hearing in support of his order.


author: SUMMERS, Justice. TATE, Justice

text:
    Robert J. GUILLIOT et al. v. The CITY OF KENNER et al.
    No. 56569.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Samuel W. Ethridge, Kenner, for plaintiffs-applicants.
    Hubert A. Vondenstein, Kenner, for defendants-respondents.
   SUMMERS, Justice.

This case began as a class action instituted by Robert J. Guilliot to enjoin the enforcement of ordinances of the City of Kenner defining and regulating certain places where coin operated amusement games are available for the use and enjoyment of the public. Plaintiff prayed for and obtained a temporary restraining order upon furnishing a bond in the amount of $1,000. The bond was furnished, and at the trial it was stipulated that the rule nisi for a preliminary injunction and the issue of a permanent injunction would be tried at the same time.

Injunction was denied by the trial court, and on June 10, 1974 plaintiff obtained an order of “suspensive appeal and/or in the alternative a devolutive appeal” to the Fourth Circuit upon furnishing an appeal bond in the amount of $1,400.

On June 11, 1974 plaintiff filed with the clerk of the district court an improperly accomplished bond form. Plaintiff Robert J. Guilliot was named as principal and Steve’s Bonding Agency was named as surety. The bond was in favor of the Civil Clerk of the Twenty-Fourth Judicial District in the amount of $1,400. Among' other less serious discrepancies, the bond was not signed by the principal or surety. The affidavit forms provided on the reverse for execution by the surety and principal were neither accomplished nor signed —they were entirely blank.

A power of attorney granted by Peerless Insurance Company which names Stephen Ghergich as attorney-in-fact is attached to the bond form. The power of attorney purports to authorize the attorney-in-fact to sign as surety on a criminal bail bond to be given by Guilliot to the State of Louisiana in the amount of $1,400. It does, however, contain a brief penned reference to “Appeals City of Kenner.”

The appeal was lodged in the Court of Appeal, argued on its merits and submitted. Shortly thereafter, on April 10, 1975, an examination of the record disclosed that the order of appeal was granted on June 10, 1974 on the condition that an appeal bond in the amount of $1,400 be furnished, and that the only bond in the record was that filed on June 11, 1974, purporting to be a bond with Robert J. Guilliot as principal and Steve’s Bonding Agency as surety. The Court of Appeal also noted that the bond was unsigned and that the power of attorney of Peerless Insurance Company indicated the agent, Stephen Ghergich, was only permitted to execute a criminal bail bond. The court, therefore, addressed a letter to counsel of record expressing concern regarding the existence of its jurisdiction, “as the appeal bond must be furnished within the delay granted for an appeal, C. C.P. Art. 2123 and Art. 2087.” Citing Article 2088 of the Code of Civil Procedure , the court expressed the view that jurisdiction did not attach in that court unless an appeal bond was timely filed. Briefs were requested from counsel on the issue thus noted by the Court of Appeal.

Shortly thereafter, on April 16, 1975, plaintiff Guilliot as principal filed another bond in favor of the Clerk of the trial court. A copy was also filed in the Court of Appeal. The bond in the amount of $1,400 was signed by Reliance Insurance Company as surety and is otherwise in proper, legal form. No brief was filed, except a short memo by defense counsel.

In this posture of the case, relying upon the pronouncements of the Second Circuit in Durrett Hardware & Furniture Co. v. Howze, 174 So. 205 (La.App.1937), the Court of Appeal rendered its decision holding that the purported bond furnished was no bond at all, and that, in the absence of an appeal bond, the court was without jurisdiction to entertain the appeal. Accordingly, the appeal was dismissed. 313 So.2d 866. Certiorari was granted on plaintiff’s application. 318 So.2d 44.

Plaintiff presents two questions on this review: 1) Does the court of appeal have authority or jurisdiction to test the validity of an appeal bond; and 2) may the court of appeal dismiss an appeal holding that no bond was filed when a new and supplemental bond had been filed in accordance with article 5124 of the Code of Civil Procedure?

"When a party to a judicial proceeding is required by law or order of court to furnish security, any bond so furnished shall be made payable to the clerk of the trial court in which the proceeding was brought. When the party required to furnish same is a plaintiff, a cash bond may be furnished in lieu of other security, at his option.
“Any person in interest may sue thereon'. No error, inaccuracy, or omission in naming the obligee on the bond is a defense to an action thereon.” La.Code Civ.P. art. 5121.
“Except as otherwise provided in this article, no bond shall be accepted in a judicial proceeding unless accompanied by affidavits of:
“(1) Each surety that he is worth the amount for which he bound himself therein, in assets subject to execution, over and above, all of his other obligations ; and
“(2) The party furnishing the bond that he is informed and believes that each surety on the bond is worth the amount for which the surety has bound himself therein, in assets subject to execution, over and above all of the other obligations of the surety.
“This article does not apply to a. bond executed by a surety company licensed to do business in this state.” La.Code Civ.P. art. 5122.
“A suspensive appeal bond shall provide, in substance, that it is furnished as security that the appellant will prosecute his appeal, that any judgment against him will be paid or satisfied from the proceeds of the sale of his property, or that otherwise the surety is liable for the amount of the judgment.
“Both devolutive and suspensive appeal bonds shall afford security for the payment of all appellate costs paid by the appellee, and all costs due by appellant, including those due the clerk of the trial court for the preparation of the record on appeal.” La.Code Civ.P. art. 2124.

These articles demonstrate that certain definite requirements apply to appeal bonds. When these requirements are considered along with the provisions of Article 2123 that a suspensive appeal “may be taken, and the security therefor furnished, only within thirty days” it becomes clear that the furnishing of bond or security is a necessary step in the process of appeal. For furnishing the bond, like the motion or petition of appeal, must be accomplished within the thirty days prescribed for the appeal, otherwise the judgment is definitive and is no longer subject to reversal or modification for “the time fixed by law for appealing is elapsed.” La.Civ.Code art. 3556(31); La.Code Civ. P. art. 2087.

In this suspensive appeal the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, “on the timely filing of the appeal bond.” La.Code Civ.P. art. 2088. In the absence of the “timely filing” of an appeal bond, therefore, the trial court’s jurisdiction is not divested and the jurisdiction of the appellate court does not attach. Arnold v. Arnold, 217 La. 362, 46 So.2d 298 (1950). When jurisdiction does not attach in the appellate court, that court'is obliged to recognize the fact and refuse to entertain review of a case over which it has never acquired jurisdiction. While the appellate court does not have jurisdiction to consider the form, substance and sufficiency of an appeal bond, it does have the authority to determine whether what purports to be a bond is in fact a bond, and whether it was timely filed, for only then does its jurisdiction attach. Mason v. State Farm Mutual Automobile Insurance Co., 312 So. 2d 175 (La.App.1975); Jones v. Galloway, 259 So.2d 623 (La.App.1972).

Whether the Court of Appeal in the instant case properly dismissed the appeal, therefore, depends upon whether the bond relied upon by the plaintiff is such that it is subject to objections as to form, substance or sufficiency; or whether the defects of the alleged bond are so glaring and so numerous that it forms no bond at all. If no bond at all was furnished the appellate court properly dismissed the appeal.

If what purports to be a bond complies substantially with the requirements of the law, objections as to its form, substance or sufficiency are properly resolved by the trial court, which retains jurisdiction for that purpose as of the date of its filing or subsequently. La.Code Civ.P. art. 2088. The trial court is authorized to cure these objections. La.Code Civ.P. arts. 5123, 5124, 5125.

On the other hand, if what purports to be a bond is nothing but blank unsigned paper it cannot be cured and it does not meet the requirements of a bond. The filing of such a document is not a “timely filing” of security which gives jurisdiction to an appellate court. Gagneaux v. Desonier, 104 La. 648, 29 So. 282 (1901); Durrett Hardware & Furniture Co., Inc. v. Howze, 174 So. 205 (La.App.1937). This was the situation in the instant case. The purported bond did not substantially comply and could not be cured. To give effect to a document purporting to be an appeal bond which does not bind the surety would render Articles 5121, 5122 and 2124 of the Code of Civil Procedure meaningless.

Nor did the tardy filing of a properly executed bond on April 16, 1975, long after the expiration of the delays for appeal, have the effect of curing a purported bond which could not be cured. Article 5124 of the Code of Civl Procedure contemplates the curing of insufficient and invalid bonds, it does not provide for curing documents which are no bonds at all.

The long-standing doctrine in Louisiana law favoring appeals does not excuse utter noncompliance with express legislation governing appeals.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

TATE, J., dissents and assigns written reasons.

CALOGERO and DENNIS, JJ., dissent.

TATE, Justice

(dissenting).

The issue is whether an appeal should be dismissed because of a timely-filed but improperly accomplished bond form.

Our code of civil procedure requires that, before an appeal is dismissed for a defect in the bond, the appellant must have the opportunity to correct it. La.C.Civ.P. arts. 5123-25. Under our general jurisprudence, this important procedural reform, first initiated by 1916 legislation and subsequently legislatively broadened, should be liberally interpreted so as to accomplish its purpose of preventing the loss of appellate rights through defective completion of bonds.

I must respectfully disagree with the scholarly majority opinion that the first imperfectly completed bond was no bond at all, just a blank piece of paper.

Very imperfectly, it is true, the bond form states its purpose of securing the $1400 bond fixed by the district court for the present appeal. An affidavit form executed by the bondsman clearly identifies him as an agent of an insurance company. He collected a premium for furnishing the bond. In my opinion, if contested, the bond could have been reformed on the grounds of error and held enforceable, at least against the agent who accepted the premium and issued the bond in improper form. See many decisions cited in 16 West’s Louisiana Digest, “Reformation of Instruments”, et seq. At any rate, the bond form filed is not a blank piece of paper clearly without any binding consequences whatsoever.

Our holding today conflicts with the virtually unanimous jurisprudence since enactment of the 1916 procedural reform.

As this court noted, citing the statute and many earlier decisions, errors in execution of a timely-filed bond should not cause the dismissal of an appeal unless, after complaint, the appellant timely fails to correct the deficiency. Blaise v. Cazezu, 208 La. 1081, 24 So.2d 147 (1945). In that case, as in this, the appellant had failed to sign the bond as a principal; but the obligation it represented was nevertheless enforceable against him. A long line of decisions has so held.

Likewise, an equally long line of decisions has held that, under the statute, an appeal should not be dismissed where the surety has not signed the bond, where (as here) he signed the affidavit. See Succession of Uthoff, 196 La. 892, 200 So.2d 290. The court pointed out that, even if the bond were invalid on that account, the appellant had the right under the statute, now La.C.Civ.P. art. 5124, to correct or replace the invalid bond.

Our holding today is in conflict with these and many other decisions of our courts. The 1901 decision of this court upon which the majority relies was legislatively overruled by the 1916 enactment. The only other authority cited, a 1937 intermediate decision, is not in accord with the earlier and later decisions of this court and of the courts of appeal.

The unambiguous code provisions were recently applied, for. example, so as to avoid dismissal of appeals without the opportunity to correct or replace initially-filed bonds with deficiencies equivalent to the present in Phillips v. Schmidty, 311 So.2d 471 (La.App. 4th Cir. 1975) (see deficiencies summarized at 311 So.2d 475) and Arrow Construction Company, Inc. v. American Employers Insitrance Co., 273 So.2d 582 (La.App. 1st Cir. 1973) (see holding that jurisdiction to test deficiencies of the nature here alleged is in trial court, 273 So.2d 584).

I must therefore respectfully dissent from the majority’s dismissal of this appeal by resurrecting two long-discarded jurisprudential expressions from our procedural dark ages. By so doing, we have disregarded the unambiguous code of civil procedure articles (as well as the many decisions of this and the intermediate courts properly interpreting them) preventing dismissal of appeals without an opportunity to cqrrect or replace technically inadequate appeal bond forms.

      . Ea.Oode Civ.Proc. art. 2088:
      “The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal. Thereafter, the trial court has no jurisdiction over these matters except to:
      “(1) Allow tlie taking of a deposition, as provided in Article 1437 ;
      “(2) Extend the return day of the appeal, as provided in Article 2125 ;
      “ (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      “(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132 ;
      “(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      “ (6) Grant an appeal to another party; or
      “ (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal.
      ' “(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code.”

      . We are so informed without contradiction. The dismissal ex proprio motu in the intermediate court prevented taking of evidence on this point.


author: TATE, Justice.

text:
    STATE of Louisiana v. Jimmy Dale HAMPTON.
    No. 56877.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    It(4iearins Denied Feb. 20, 1976.

      Vincent Wilkins, Jr., Director, Roland T. Huson, III, App. Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Lennie Perez, James E. Boren, Asst. Dist. Atty., for plaintiff-ap-pellee.
   TATE, Justice.

The defendant Hampton was convicted of attempted aggravated rape, La.R.S. 14:42, 14:27, and sentenced to imprisonment at hard labor for ten years. The assignments of error relied upon on appeal relate to (a) the allowance of lineup testimony into .evidence and (b) the refusal of the trial court to require the victim of the rape to demonstrate how loud she screamed at the time of the incident.

(a) Lineup Testimony Objection

The lineup at which the victim identified the defendant as her assailant was fairly conducted. It included only men of similar general appearance, picked by the defendant’s court-appointed counsel. The victim immediately identified the defendant from the six men in the lineup.

The evidence so shows without contradiction. No complaint is made as to the fairness of the lineup or as to the adequate assistance of the court-appointed counsel at that time.

The sole ground for objecting to admission of the lineup testimony was that the court-appointed counsel was subsequently appointed an assistant district attorney some six months later. He was serving as an assistant district attorney (not charged with prosecution of the present case) at the time of the trial about seven months after the incident.

We find no authority or legal reason to deny admission of a properly conducted lineup for the reason so assigned. This assignment of error is without merit.

(b) Yelling Demonstration by Victim

The victim testified that she had screamed as she escaped from her assailant. Under cross-examination, she was questioned as to her yelling (doubt being indicated, because no one came out from the nearby houses). The apparent purpose was to cast doubt on the victim’s testimony of her resistance to the defendant’s advances.

The defendant’s counsel then asked: “Yell to the top of your voice for me.”

The prosecuting attorney objected, pointing out that the courtroom conditions did not approximate the stress of an attack on a deserted nighttime street.

As we recently noted in State v. Mays, 315 So.2d 766, 768 (La.1975): “The trial court has a large discretion in permitting or refusing in-court experiments. Usually, however, simple demonstrations by a witness are permissible. Criteria for withholding trial permission include considerations arising from the possible disruption of orderly and expeditious proceedings or from the lack of similarity between the courtroom conditions and the actual conditions sought to be re-tested." (Italics ours.)

We find no abuse of the trial court’s discretion in sustaining the objection for the reasons urged.

Conclusion

The three other assignments of error are not argued and are presumed abandoned. Our independent review further shows no merit to any of them.

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

Affirmed.

      . Evidence taken outside the presence of the jury further indicates that the defendant’s counsel had been appointed immediately prior to the lineup and solely for the purpose of representing him at it. The casual conversation between the counsel and the defendant adverted, on the merits, only to the defendant’s denial of the incident and certain exculpatory explanations (which he had already given to the investigating police officers). The attorney never communicated these to the prosecutor’s office after his appointment as a district attorney. No prejudice whatsoever is shown to the accused by the subsequent appointment of his court-appointed counsel as an assistant district attorney not directly involved in his prosecution. See State v. Woods, 283 So.2d 753 (La.1973).


text:
    Elsie CARTER v. Dr. R. Bruce PHILLIPS.
    No. 57347.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Elsie Carter applying for Stay Order and Writs of Certiorari, Prohibition and Mandamus. 325 So.2d 337.

Granted. (See Order.)

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 Robert P. Jackson Judge of the Ninth Judicial District Court, for the Parish of Rapides, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of February, 1976, 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 17th day of May, 1976, 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. Joseph WILLIAMS.
    No. 57393.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: State of Louisiana, applying for writ of certiorari.

Granted. (See Order).

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 Robert F. Collins, Magistrate Judge of the Criminal, District Court for the Parish of Orleans, to transmit to the Supreme Court- of Louisiana, on or before the 23rd day of February, 1976, 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 21st day of May, 1976, 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 ex rel. Earl David ROBINSON, III v. Hon. Frank T. SALTER, Jr., D.A., 14th Judicial District Court, In and For Calcasieu Parish, State of Louisiana, et al.
    No. 57433.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Earl David Robinson, III, applying for writs of certiorari, mandamus and prohibition.

Writ granted. Since this is not a capital offense, applicant is entitled to bail. Victim was released or liberated unharmed. R.S. 14:44.


text:
    STATE of Louisiana ex rel. Leon GARRETT v. C. Paul PHELPS, Warden, Louisiana State Penitentiary, et al.
    No. 57205.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Leon Garrett applying for Writs of Certiorari and Habeas Corpus.

Writ granted. Relator, Leon Garrett, is ordered returned to the Jefferson Parish Jail pending his appeal. La. Code Crim. Proc. art. 913; La.R.S. 15:566; State v. Williams, 264 So.2d 638 (La.1974).


text:
    STATE of Louisiana v. Adelaide BAUDIER.
    No. 57420.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Adelaide Baudier applying for writ of review.

Writ granted. Argument is requested on assignment of error No. 4, relating to prescription.

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 Wallace C. LeBrun, Judge of the 24th Judicial District Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of February, 1976, 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 21st day of May, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

Argument is requested on assignment of error No. 4, relating to prescription.


text:
    STATE of Louisiana v. Melvin BAUDOIN and Errol Falcon, The Hon. George R. Cook, Sheriff, Parish of Sabine, and Hon. Jack Burgess, Judge, 11th Judicial District Court, Parish of Sabine.
    No. 57445.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Melvin Baudoin and Errol Falcon apply for Writ of Habeas Corpus.

Granted. (See Order).

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 Jack Burgess, Judge of the Eleventh Judicial District Court, for the Parish of Sabine, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of February, 1976, 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 21st day of May, 1976, 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. Patricia A. SHORES.
    No. 57447.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Patricia A. Shores applying for Writs of Certiorari (Review), Prohibition or Mandamus.

Writ granted. (See Order).

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 Guy E. Humphries, Jr., Judge of the Ninth Judicial District Court, for the Parish of Rapides, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of February, 1976, 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 21st day of May, 1976, 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. Milton L. CARR.
    No. 57484.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Milton L. Carr applying for Remedial Writs and Stay Order.

Writ granted. Preliminary hearing ordered forthwith absent a grand jury indictment. See Art. 292 C.Cr.Pr. a/a Act 1974 Ex.Sess. #16 Sec. 1.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. J. W. GORDY et ux.
    No. 57272.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: J. W. Gordy and Merle Clack Blackman Gordy applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 322 So.2d 418.

Writ refused. The judgment is final, since no rehearing applied for in Court of Appeal. See LSA-C.C.P. art. 2167. See also La.R.S. 13:4450.


text:
    Ralph BOWN, Jr., et al. v. AUSTRAL OIL CO., INC.
    No. 57398.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Ralph Bown, Jr., L. C. Aycock and E. W. Fort applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Jefferson Davis. 322 So.2d 866.

Writ denied. No error of law in the judgments below. Plaintiffs are not precluded from asserting fraud as the basis for a claim under the letter contract which has been the subject of this litigation.


text:
    Louis RICHARD v. The TRAVELERS INSURANCE COMPANY et al.
    No. 57400.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Louis Richard, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. 323 So.2d 176.

Writ denied. The judgment of the Court of Appeal is correct.


text:
    STATE of Louisiana ex rel. George M. PORTER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57418.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re : George M. Porter, applying for writ of habeas corpus.

Writ denied. Similar writ filed by relator was denied by this court on January 30, 1976.


text:
    Jeffery J. DESHOTEL v. CALCASIEU PARISH POLICE JURY.
    No. 57411.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Calcasieu Parish Police Jury, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 323 So.2d 155.

Writ denied. The judgment of the Court of Appeal is correct.


text:
    STATE of Louisiana ex rel. Ronald YOUNG v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57416.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Ronald Young applying for Writ of Habeas Corpus and Certiorari.

Denied. There is no merit in the application.


text:
    STATE of Louisiana ex rel. James E. ROLLINS v. C. Paul PHELPS, Acting Warden, Louisiana State Penitentiary.
    No. 57417.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: James E. Rollins, applying for writ of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. The ruling of the trial court was correct.


text:
    STATE of Louisiana ex rel. Joseph TINSON v. William M. JUSTICE, Jr., Clerk, 24th Judicial District Court.
    No. 57429.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Joseph Tinson, applying for writ of mandamus and habeas corpus.

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


text:
    STATE of Louisiana ex rel. Saul FONSECA and Leoncio Castillo v. C. Paul PHELPS, Acting Warden, Louisiana State Penitentiary.
    No. 57419.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Saul Fonseca and Leoncio Castillo applying for Writ of Habeas Corpus.

Writ Denied. The alleged trial error in opening statement is not reviewable by post-conviction proceedings. With regard to the alleged unconstitutional search, we are unable to say from the conclusory allegations of the application that the issues raised were not decided by the direct appeal. See State v. Smith, 283 So.2d 470 (La.1973).


text:
    WM. T. BURTON INDUSTRIES, INC. v. Ivey COOK.
    No. 57409.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Wm. T. Burton Industries, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 322 So.2d 880.

Writ denied. Under the facts found by the Court of Appeal, there is no error in the result.


text:
    Frank Henry GARRETT v. Patricia Carter GARRETT.
    No. 57448.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Frank Henry Garrett, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 324 So.2d 494.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana v. Glenn S. PASSMAN.
    No. 57428.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Glenn S. Passman applying for Writs of Certiorari and Habeas Corpus.

Application denied as premature. The matters complained of can be raised on appeal in the event of conviction.


text:
    STATE of Louisiana ex rel. Charles VARNADO v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57449.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Charles Varnado, applying for writ of certiorari and habeas corpus.

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


text:
    STATE of Louisiana v. Berald H. ANDRY.
    No. 57455.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: State of Louisiana, applying for writ of certiorari.

Writ denied. This is an appealable case. Remedy of state is by appeal. See State v. Giants, 253 La. 883, 220 So.2d 711 (1969); La.Code Crim.Procedure, Arts. 882 and 912.


text:
    STATE of Louisiana v. Michael McDONNELL.
    No. 57456.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. This is an appealable case. Remedy of state is by appeal. State v. Giants, 253 La. 883, 220 So.2d 711 (1969); La.Code of Criminal Procedure, Arts. 882 and 912.


text:
    Robert Claude FERRINGTON et ux. v. Cleavon R. McDANIEL et al.
    No. 57468.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: Robert Claude Ferrington and Vergie Ferrington applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Caldwell. 323 So.2d 880.

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:
    William A. FISKE v. Barbara Childers FISKE.
    No. 57434.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: William A. Fiske, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Cad-do. 323 So.2d 848.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    R. P. SMITH v. Louis A. ROBERTSON et al.
    No. 57402.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: R. P. Smith applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 323 So.2d 193.

Writ refused. The issues are factual. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    R. D. FORNEA COMPANY, INC. v. Eddie L. FORNEA.
    No. 57471.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: Ellis Clairain, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington. 324 So.2d 619.

Writ refused. On the facts found, the Court of Appeal correctly held that relator’s boundary did not include the body of water. Hence the result is correct.


text:
    STATE of Louisiana ex rel. Eugene REDD v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57461.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: Eugene Redd applying for writ of habeas corpus and mandamus.

Writ refused. The trial court has no record of an application for transcript and reports that the transcript of hearing has already been furnished to relator’s attorney.


text:
    STATE of Louisiana v. Dorothy Cobb DUBOIS.
    No. 57491.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: Dorothy Cobb Dubois applying for writs of certiorari and prohibition.

Writ granted. (See order.)

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 W. Peyton Cunningham, Jr., Judge of the Tenth Judicial District Court, for the Parish of Natchitoches, to transmit to the Supreme Court of Louisiana, on or before the 1st day of March, 1976, 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 21st day of May, 1976, 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 ex rel. Elrick J. MANUEL v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57451.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: Elrick J. Manuel applying for writ of habeas corpus.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction. See State v. Williams, 262 La. 769, 264 So.2d 638 (1972); La.Code Crim.Pro. art. 880 (1970); Parker v. Estelle, 498 F.2d 625 (5th Cir. 1974), this latter case holding there is no absolute constitutional rights to pre-sentence detention credit.


text:
    STATE of Louisiana v. Eddie Louis BELL.
    No. 57510.
    Supreme Court of Louisiana.
    Feb. 12, 1976.
   In re: Eddie Louis Bell applying for remedial or supervisory writs of certiorari, prohibition and mandamus and stay order.

Granted (with stay order.)

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 John S. Covington Judge of the Nineteenth Judicial District Court, for the Parish of East Baton Rouge to transmit to the Supreme Court of Louisiana, on or before the 1st day of March, 1976, 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 21st day of May, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

It is further ordered that, in the meantime and until the further orders of this court all proceedings against the relator in said 19th Judicial District Court shall be stayed and suspended.


text:
    STATE of Louisiana ex rel. Steve SUTTON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57454.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Steve Sutton applying for habeas corpus and remedial writs.

Writ granted. Evidentiary hearing ordered (with court appointed counsel) relative to applicant’s contention that at trial he was denied the opportunity to present witnesses.


text:
    J. B. OWEN et al. v. W. H. OWEN et al.
    No. 57467.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: W. H. Owen, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 325 So.2d 283.

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:
    Anna Mae LEWIS v. The ST. CHARLES PARISH HOSPITAL DISTRICT d/b/a the St. Charles Hospital et al.
    No. 57470.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Anna Mae Lewis applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Charles. 323 So.2d 842.

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:
    Joe ALESCE v. HUTTON-DONALDSON, INC.
    No. 57466.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Joe Alesce, applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 324 So.2d 506.

Writ denied. Under the facts found by the Court of Appeal, the result is correct.


text:
    Allen D. MORGAN v. Vadna Burkett CULPEPPER et al.
    No. 57489.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Allen D. Morgan applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bien-ville. 324 So.2d 598.

Writ denied: No error of law under the facts shown, reserving any right the applicant may have to apply to the trial court for injunctive relief now that the servitude under C.C. arts. 699, 700, is recognized by final judgment of the court of appeal.


text:
    Stuart H. BURRIS v. William T. GAY, Jr., and Sandra Querbes Gay.
    No. 57481.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: William T. Gay, Jr., et ux., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of DeSoto. 324 So.2d 11.

Writ denied. There is no error of law in the judgment complained of.


text:
    W. B. NORTON v. Charles A. ADDIE
    No. 57490.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Mrs. Maggie Sumner Norton, Mrs. Helen L. Norton Richardson and Kenneth Dale Norton applying for certio-rari, or writ of review, to the Court, of Appeal, Second Circuit, Parish of Caddo. 324 So.2d 497.

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:
    Eugene H. WATSON, Sr. v. Mrs. Ceola S. SCOTT et al.
    No. 57487.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Vadna Burkett Culpepper and Delphia Burkett Thomas, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bien-ville. 324 So.2d 508.

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


text:
    Allen D. MORGAN v. Vadna Burkett CULPEPPER et al.
    No. 57503.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Vadna Burkett Culpepper, Del-phia Burkett Thomas, Ernest O. McCoy, Mack Allen McCoy and Marlin Margene McCoy applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bienville. 324 So.2d 598.

Writ denied. No error of law. No abuse of discretion shown by permitting amended petition to cure technical objection sustained by peremptory exception, La.C.C.P. art. 934, and to conform to evidence and issues tried by implied or express consent, La.C.C.P. arts. 1034, 1035.


text:
    W. E. GROVES v. The BOARD OF TRUSTEES OF the TEACHERS’ RETIREMENT SYSTEM of Louisiana.
    No. 57527.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: W. E. Groves applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d 587.

Writ denied. No error of law.


text:
    Mary Alice GUILBEAU et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 57498.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Mary Alice Guilbeau et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 324 So.2d 571.

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:
    Mary Alice GUILBEAU et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 57511.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Gaines P. Wilson & Son, Inc. and Liberty Mutual Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 324 So.2d 571.

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:
    Mary Alice GUILBEAU et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 57520.
    Supreme Court of Louisiana
    Feb. 17, 1976.
   In re: Continental Insurance Co. applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 324 So.2d 571.

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:
    Succession of Lucille McFarland Deceased wife of Frank C. ANDERSON.
    No. 57507.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Alice B. Anderson Nusloch, Frank C. Anderson, Jr., Jane L. Anderson Rote and Frank C. Anderson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ refused. The case has been remanded to allow an amendment of the petition. As to these relators, the judgment is not final.


text:
    Nathan T. STICKER v. GENERAL FOODS CORPORATION et al.
    No. 57501.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Nathan T. Sticker applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangi-pahoa. 324 So.2d 568.

Application denied; we cannot say the court of appeal was wrong in finding an abuse of discretion by the trial court in fixing damages.


text:
    STATE of Louisiana, DEPT. OF HIGHWAYS, v. OILMARK CORPORATION.
    No. 57502.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Oilmark Corporation applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 324 So.2d 606.

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


text:
    W. E. GROVES v. The BOARD OF TRUSTEES OF the TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA and Carleton Page.
    No. 57509.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: The Board of Trustees of the Teachers’ Retirement System óf Louisiana and Carleton Page applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d 587.

Writ denied. The legislative act justifies the result reached.


text:
    James PICARD v. Raymon J. SHAUBHUT.
    No. 57545.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Raymon J. Shaubhut applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston. 324 So.2d 517.

Not considered. The application was not timely filed.


text:
    Anthony L. PALAMA v. Elsie Cecile Dobard, wife of Anthony L. PALAMA.
    No. 57540.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Elsie Cecile Dobard applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard. 323 So.2d 823.

Writ denied. On the facts found, we are unable to say the result is incorrect.


text:
    Anthony L. PALAMA v. Elsie Cecile Dobard, wife of Anthony L. PALAMA.
    No. 57494.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Anthony L. Palama applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard. 323 So.2d 823.

Writ denied. On the facts found, we are unable to say the result is incorrect.


text:
    Margaret MESSINA et al. v. Aubrey L. MICHAEL et al.
    No. 57499.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Margaret Messina et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Pointe Coupee. 324 So.2d 837.

Writ denied. No error of law.


text:
    Leon EDWARDS v. CONSOLIDATED UNDERWRITERS.
    No. 57532.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Leon Edwards, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipa-hoa. 324 So.2d 564.

Application not considered; not timely filed.


text:
    STATE of Louisiana ex rel. Albert REED v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57497.
    Supreme Court of Louisiana.
    Feb. 17, 1976.
   In re: Albert Reed applying for writ of habeas corpus.

Writ refused. The questions raised in this petition were disposed of in the appeal to this court. See State v. Reed, 284 So.2d 574 (1973).