author: MARCUS, Justice. TATE, Justice

text:
    STATE of Louisiana v. Ishmel JONES.
    No. 57306.
    Supreme Court of Louisiana.
    May 17, 1976.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.
   MARCUS, Justice.

Ishmel Jones was indicted by the grand jury for the Parish of Orleans for the crime of aggravated rape. La.R.S. 14:42. After trial by jury on March 13-14, 1972, he was found guilty as charged and was sentenced to death by electrocution on March 21, 1972. On appeal, defendant relies on fourteen assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

A denial of due process is urged by defendant for the failure of the trial judge to require the state to furnish certain information and evidence in his prayer for oyer and motion for a bill of particulars. Objection to such denial was made during the hearing on the motion to quash.

The information sought consisted of the following: oral confessions and/or admissions of inculpatory or exculpatory nature; all quotations, and/or paraphrases of alleged confessions and/or admissions of in-culpatory or exculpatory nature made by the accused and reflected in the police reports and/or files of the district attorney; a true copy of all technical laboratory reports and/or examinations of objects found at or near the scene of the alleged offense of an inculpatory or exculpatory nature which may be used by the state; an exact description or copy of any objects which may have been removed from or near the scene of the alleged crime that may be of an inculpatory and/or exculpatory nature; a copy of all pictures of the scene of the alleged crime made by or for the police as they relate to defendant and this case.

The state answered that it had no written confessions, statements or admissions of defendant, signed or unsigned, and that the other information sought was not subject to discovery.

The function of a bill of particulars is to inform the defendant more specifically of the nature and cause of the charge against him. La.Code Crim.P. art. 484 (1966); State v. Monk, 315 So.2d 727 (La.1975); State v. Devore, 309 So.2d 325 (La.1975). Pretrial discovery is not allowable to the defendant in criminal cases except in certain limited exceptions not present here. It is well settled that the state is not required to disclose the physical evidence it intends to use to prove the crime charged. State v. Collins, 308 So.2d 263 (La.1975); State v. Thomas, 306 So.2d 696 (La.1975); State v. Kado, 300 So.2d 461 (La.1974); State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Frezal, 278 So.2d 64 (La.1973). As a general rule, oral confessions are not subject to pretrial discovery. State v. Major, 318 So.2d 19 (La.1975); State v. Watson, 301 So.2d 653 (La.1974).

Hence, the trial judge correctly refused to require the state to furnish the information and evidence sought by defendant. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3 AND 4

A motion to suppress identification filed by defendant was denied by the trial judge. During the hearing on this motion, objections were made to the curtailment of the questioning of two witnesses, Catherine Harding and Kenneth Thomassie.

The defense called Catherine Harding who, with a girlfriend, Katherine Stroh-meyer, had been kidnapped and threatened with rape by defendant some four days after the commission of the rape charged in this matter. The rape charged herein allegedly occurred on November 27, 1970, whereas the offense involving this witness occurred on December 1, 1970. Miss Harding testified that she identified the defendant from a number of mugshots shown to her on December 2, 1970 and later positively identified him in a lineup conducted on December 4, 1970. This was the same lineup in which defendant was identified by both the victim in this case and her companion, Kenneth Thomassie. On redirect examination, Catherine Harding was asked the following question to which the state’s objection was sustained:

Now, do you think or do you feel that the viewing of a limited number of mug shots on the same day as the lineup would have persuaded you in any way or would have biased your opinion to identify this man?

Defendant argues that this witness seemed uncertain of the real basis for her lineup identification; therefore, he was entitled to question her concerning the effect that the viewing of the mugshots may have had on her lineup identification.

There is no merit to this contention. It is clear from the testimony of this witness that her positive identification of defendant at the lineup was based on her independent recollection of him at the time of the offense. Consequently, no prejudice resulted from this ruling.

Kenneth Thomassie, companion of the rape victim, was called by the defense. The state’s objection to the following question was sustained: “What was the lighting condition out there?” The trial judge correctly sustained this objection. The lighting condition surrounding a witness’ identification of the accused at the time of the alleged crime is not relevant to the issues presented in a pretrial motion to suppress identification.

It is clear from the testimony adduced at the hearing on the motion to suppress identification that the procedures employed by the state relative to showing of the mugshots and the conducting of the lineup were proper and free from any suggestiveness.

Assignments of Error Nos. 2, 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

The state’s challenge for cause of a prospective juror, Curtis Watts, was sustained by the trial judge. Defendant points to the following question and response as evidence of error in the trial judge’s ruling:

Q. Are you saying you would vote against the imposition of capital punishment no matter what the evidence showed ?
A. That’s what I think.

Defendant argues that the prospective juror was not firm and unequivocal in his refusal to say if he would vote against capital punishment no matter what the evidence showed. His argument seems to be based on an alleged Witherspoon violation. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Article 798, as amended by Acts 1968, Ex.Sess., No. 13, § 1 of the Code of Criminal Procedure provides in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt; or

An examination of the prospective juror’s entire testimony regarding this point clearly indicates that he had conscientious scruples against the imposition of capital punishment and would vote against the imposition of same without regard to what the evidence might show. Hence, the trial judge did not err in sustaining the state’s challenge for cause. State v. Washington, 321 So.2d 763 (La.1975).

ASSIGNMENT OF ERROR NO. 5 LACKS MERIT.

ASSIGNMENTS OF ERROR NOS. 6, 7 AND 10

These assignments of error are neither briefed nor argued. Defendant simply submits them for consideration. Ordinarily, such assignments of error would be considered abandoned. State v. Carlisle, 315 So.2d 675 (La.1975). However, in view of the fact that this case involves a capital offense, we will nevertheless review them.

Before the jury was sworn, defense counsel excepted to the jury on the ground that it did not represent a true cross-section of the community. No argument nor evidence was offered in support of this assertion. The trial judge correctly overruled the objection (Assignment of Error No. 6). Next, defendant objected to the qualifying of a state witness as an expert (Captain Milton Cox). The record reveals that this witness was properly qualified as found by the trial judge (Assignment of Error No. 7). Defense counsel asked the prosecutrix whether it was not a fact that at the time of her present testimony at trial she was a virgin. She replied that she was not. Then defense counsel asked her: “Is the Coroner wrong?” The state’s objection to this question was sustained. The trial judge correctly found that this witness had no way of knowing what the coroner had stated in this regard; therefore, she could not answer if he was right or wrong. Hence, the trial judge did not err in sustaining the state’s objection to the question asked (Assignment of Error No. 10).

Assignments of Error Nos. 6, 7 and 10 are without substance.

ASSIGNMENT OF ERROR NO. 8

Defendant moved for a mistrial during the examination of a state witness, Detective George Heath, claiming that the witness improperly referred to defendant’s prior criminal record.

The context facts are as follows. Detective George Heath testified on direct examination that, after the arrest of defendant, he was charged with aggravated rape of the victim in this proceeding and the aggravated kidnapping of both Katherine Strohmeyer and Catherine Hardipg. Heath related that he and his partner took a selection of B of I (bureau of identification) photographs, including one of defendant, to the house of the victim in this matter. He testified that they tried to match the other photographs as closely as possible with that of defendant and that this selection process took about ten or fifteen minutes. Thereupon, the following question and answer ensued:

Q. Approximately how many photographs did you look through in ten or fifteen minutes to pick the particular six or seven that you were going to use for identification ?
A. That would be hard to say. First we went to the B of I and we pulled the subject’s record. Let me correct myself: In the Detective Bureau, we have a mug shot file. .

Objection was made to the reference to defendant’s record and a mistrial was requested. The trial judge sustained the objection but overruled the motion. He then admonished the jury to disregard any comment by this witness, gratuitously made, or any reference or allusion to any record of defendant.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, would require a mistrial on motion of defendant. La. Code Crim.P. art. 770(2). First, a police officer is not a “court official”; therefore, article 770 does not apply. Rather, article 771 of the Code of Criminal Procedure would be the applicable article. State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Clark, 288 So.2d 612 (La.1974). The trial judge found no bad faith on the part of the state. Nor does defendant contend that the remark regarding defendant’s record was obtained by design of the prosecutor. It is also obvious that it was not deliberately uttered by the police witness to prejudice defendant. We are satisfied that any prejudice which may have occurred as a result of this remark was cured by the trial judge’s admonition. A mistrial was not required under article 771, particularly since the remark was not responsive to the prosecutor’s question. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for the reversal of a conviction. State v. Luneau, 323 So.2d 770 (La.1975); State v. Howard, 283 So.2d 197 (La.1973). Hence, Assignment of Error No. 8 lacks merit.

ASSIGNMENT OF ERROR NO. 9

Defendant moved for a mistrial claiming prejudice resulting from his being handcuffed and gagged in the presence of the jury.

During the direct examination of the victim, the record contains a notation to the effect that the defendant had to be gagged and the jury removed from the courtroom. It is uncertain whether the gagging took place before or after the jury was removed. Thereafter, clearly outside the presence of the jury, the trial judge stated that on numerous previous occasions he had to warn defendant against his repeated outbursts in the courtroom. Upon being assured by defendant that he would cease disrupting the trial, the trial judge ordered that the gag and handcuffs be removed. Defense counsel then moved for a mistrial which was denied by the trial judge. The jury was returned to the courtroom and was fully admonished by the trial judge.

It has been repeatedly held that it is permissible to bind and gag an unruly accused if he insists on conducting himself in such a disruptive manner that the trial cannot otherwise proceed. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); State v. Brewer, 301 So.2d 630 (La.1974); State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971). Even assuming that the jury observed defendant gagged and handcuffed, based upon the reasons stated by the trial judge in the record, we cannot say that he abused his discretion in taking the action that he did. Moreover, at most, the jury observed defendant in this condition for only a matter of seconds prior to their being removed from the courtroom. The gag and handcuffs were removed from defendant before the jury returned. The trial judge fully admonished the jury to disregard the incident. It is well settled that the record must clearly show that the occurrence complained of was prejudicial to the rights of the accused. State v. Clark, 325 So.2d 802 (La.1976); State v. Kinchen, 290 So.2d 860 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972); State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). Under the circumstances of this case, we do not find that the incident prejudiced any rights of defendant. Accordingly, the trial judge did not err in denying defendant’s motion for a mistrial. Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant contends that the trial judge erred in overruling his objection to the use at trial of evidence of his commission of an offense similar to the one with which he was charged.

Briefly, the facts of this case are that about 10:00 or 11:00 p. m. on November 27, 1970, Kenneth Thomassie and his date were returning to their car parked on Decatur Street after a walk on the levee near the Jax Brewery in the City of New Orleans. Ishmel Jones approached them and asked for a ride for a couple of blocks. Once in the back seat of the car, he asked for money and placed a broken bottle to the back of Thomassie’s neck. He then forced Thomassie’s date to have sexual relations with him in the back seat of the car, using the broken bottle to force her compliance. A handkerchief was left in Thomassie’s car by defendant after his escape. About four days later, December 1, 1970, at about 10:00 p. m., Catherine Harding and Katherine Strohmeyer were in the process of parking their car on Decatur Street adjacent to the Jax Brewery when Ishmel Jones forced his way into the back seat of their vehicle. He then told them if they drove him a couple of blocks he would get out of the car. During the course of the drive, he asked for money, placed a broken bottle to their necks and said that he was going to have sexual relations with each of them. The broken bottle was inside his handkerchief. In their pleadings with him not to harm them, one of the girls said that she was pregnant at the time. For whatever reason, he later got out the car without carrying out his threats to rape them.

Defendant’s objection was to the testimony of Catherine Harding and Katherine Strohmeyer regarding this second offense. The trial judge overruled the objection, citing La.R.S. 15:445 and 446 as authority for its admission.

In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment. La.R.S. 15:445. Where the offense is one of a system, evidence is admissible of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged. La.R.S. 15:446. Within a reasonable time before trial, the state must furnish the defendant a statement in writing of the similar acts or offenses it intends to offer in evidence. State v. Prieur, 277 So.2d 126 (La.1973).

State v. Prieur, supra, set forth specific safeguards, including written notice prior to trial, with which the state must comply when it intends to offer evidence of other criminal offenses under R. S. 15:445 and 446. However, these provisions are only applicable to criminal cases tried after the finality of said judgment which was on March 26, 1973. The instant case was tried before that date on March 13-14, 1972. Therefore, defendant was not entitled to a written notice prior to trial in this case. State v. Thomas, 290 So.2d 690 (La.1974); State v. Grant, 295 So.2d 168 (La.1973). Our jurisprudence is uniform in holding that evidence of similar acts is admissible where almost identical tactics are used to show the “system” or modus operandi employed by the defendant. State v. Price, 325 So.2d 780 (La. 1976) (on rehearing); State v. Grant, 295 So.2d 168 (La.1973); State v. Carney, 260 La. 995, 257 So.2d 687 (1972); State v. Modelist, 260 La. 945, 257 So.2d 669 (1972); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971); State v. Montegut, 257 La. 665, 243 So.2d 791 (1969). In view of the similarity of the method and plan of operation employed by defendant in the two offenses and the close connexity in both time and location between the offenses, evidence of the kidnapping (and the threat of rape) of Catherine Harding and Katherine Strohmeyer was admissible in the prosecution of this defendant for the rape of the victim herein in order to show “system,” or modus operandi. La.R.S. 15:445 and 446. Moreover, defendant was positively identified by the victim, her companion, and two other persons who witnessed his escape from the Thomassie vehicle after the commission of the crime. The testimony of Catherine Harding and Katherine Strohmeyer relative to the other offense constituted only an insignificant part of the trial of this matter. Under these circumstances, the probative value of evidence of this similar offense outweighed any possible prejudicial effect. Accordingly, Assignment of Error No. 11 is without merit.

ASSIGNMENTS OF ERROR NOS. 12, 13 AND 14

Defendant urges that the trial judge erred in permitting in evidence the rape victim’s dress (S — 10), a broken glass (S-14), and a handkerchief (S-4). He asserts that the state failed to establish an adequate chain of custody prior to their admission in evidence.

There is no merit to this contention. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we stated:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

See also State v. Mims, 330 So.2d 905 (La.1976); State v. Roach, 322 So.2d 222 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).

In the instant case, Officer Don R. Hi-mel testified that the above items were given to him by the victim’s mother on the night of the crime and were tagged and initialed by him at that time. He identified his initials on the tags attached to these items at trial. The victim’s mother confirmed that she turned these items over to the police. She also identified her daughter’s dress. There was evidence that the glass and handkerchief were removed from the rear seat of the Thomassie vehicle. Kenneth Thomassie identified the broken glass as looking similar to that used by defendant on the night of the crime. The rape victim identified her dress and the handkerchief belonging to defendant as well as the broken glass used by defendant on the night the crime was committed. She also confirmed that the items were placed in a bag and taken to the police station by her mother.

We are satisfied that the chain of custody was amply established by this testimony. Furthermore, visual identification was also made of the victim’s dress as well as the handkerchief and piece of broken glass. Clearly, it was more probable than not that these items introduced in evidence were related to the case. The trial judge properly permitted their admission in evidence. Hence, there is no merit in Assignments of Error Nos. 12, 13 and 14.

Finally, defendant asserts that his death sentence imposed on March 21, 1972 is invalid under the holding of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) in which it was held that the imposition of the death penalty could not be constitutionally imposed under the then existing procedures. Hence, in compliance with the judgment of that Court, we must vacate the death sentence and remand the case to the trial court for the imposition of a sentence of life imprisonment. State v. Richmond, 278 So.2d 17 (La.1973); State v. Foy, 278 So.2d 38 (La.1973); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

DECREE

For the reasons assigned, the conviction is affirmed, but the death sentence is vacated and the case is remanded to the trial court for the imposition of a sentence of life imprisonment.

DIXON, CALOGERO and DENNIS, JJ-, concur.

TATE, J., concurs and assigns reasons.

TATE, Justice

(concurring).

With regard to assignment of error eleven, I concur with great reservation.

The objection raised by this assignment is to evidence of a completely different offense, an attempted rape about four days later then the present offense. It is true that the identical method of attempting the crime was used. But proof of an identical system of commission of a different crime is admissible only to prove guilty knowledge or intent, or sometimes identity, if these are at issue.

Here, however, the defendant is charged with a forcible rape of a stranger, by use of threat and a weapon. Proof of the act itself proves the guilty knowledge and intent.

The evidence as to a similar but different offense does not relevantly prove any more than that the accused was a bad man who had tried to commit a similar offense — evidence which has long been held inadmissible and beyond the traditional concepts of American criminal prosecutions to require proof of the particular crime charged, but to exclude as prejudi-cially irrelevant any evidence of general bad character (with the limited, strictly construed, exceptions provided by La.R.S. 15:445, 446).

The evidence as to the entirely different offense has practically no probative value as to the defendant’s guilt of the present offense. It simply proves the different offense.

However, since this case was tried before our decision in State v. Prieur, 277 So.2d 126 (La.1973) clarified the misuse of other-offense evidence, I am unwilling at this time to reverse, where the evidence was admitted in reliance upon then recent decisions of this court (since overruled by Prieur, in a return to earlier jurisprudential interpretations requiring • strict construction of La.R.S. 15:445,446).

For the reasons assigned, therefore, I concur in the overruling of assignment of error eleven. I subscribe without such reservation to the majority’s disposition of the other assignments of error.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Alvin Paul HILL.
    No. 57300.
    Supreme Court of Louisiana.
    May 17, 1976.

      Robert J. Ziblich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Alvin Paul Hill was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. On March 18, 1975, defendant was tried and the jury returned a responsive verdict of guilty of attempted aggravated rape. Prior to sentencing, the district attorney filed a bill of information, pursuant to La.R.S. 15:529.1, charging defendant as a multiple offender and setting forth three previous felony convictions. After a hearing, defendant was sentenced as a second offender to forty years imprisonment. He now appeals, relying on four assignments of error with respect to the conviction and three assignments of error relative to the sentence.

On October 28, 1974, a woman - attempting to exit her car in the parking lot of the Gentilly Woods Shopping Center in New Orleans was accosted by a man with a knife and forced back into her car. After being forced to drive him around for a while, she was ordered to stop on a street behind the Riget Theatre on Franklin Avenue in Orleans Parish, where she was raped. She was then forced to drive to a place beneath an I — 10 “bridge” near Apache Street in Orleans Parish, where she was again raped. The assailant then instructed her to take him back to his car in the parking lot of the shopping center. From a description of the assailant and of his car given to the police by the victim, defendant was picked up and arrested a short time later.

ASSIGNMENT OF ERROR NO. 1.

By this assignment of error, defendant argues that the trial court erred when it allowed Officer Edgar Dunn, a criminalist with the New Orleans Police Department, to testify as an expert in the examination of seminal fluid and the comparison of hair samples.

Officer Dunn testified that he has a Bachelor of Science degree in biology from the University of Mississippi and one semester of graduate work in Chemistry at the same university; that he is a member of the Forensic Scientists Society and the Louisiana Association of Forensic Scientists; and that he has previously testified as an expert in the examination of seminal fluid and the comparison of hair samples in Section I of the Criminal District Court for the Parish of Orleans, and as an expert in seminal fluid in Sections D and J of that court. He had at the time of trial worked as a criminalist for the New Orleans Police Department for four and one half years. Following testimony by Officer Dunn as to the types of tests hé performed, the trial judge ruled that he was qualified to testify as an expert witness. Defense counsel objected to the ruling.

The basis of defendant’s argument is that during the predicate to qualify him as an expert, Officer Dunn testified that “[a]ny stain on pants isn’t necessarily seminal fluid. If it does fluoresce, it has a high possibility of being seminal fluid.” Defense counsel contends that this statement demonstrates that the examination of seminal fluid is too inexact and that expert testimony in that area is, therefore, improper. No argument was raised questioning Officer Dunn’s qualification as an expert in the comparison of hair samples.

La.R.S. 15:464 provides that “[o]n questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such knowledge are admissible as expert testimony.” Prior to testimony as an expert, however, a witness must be qualified as such by the trial court. La.R.S. 15:466 provides as follows:

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

It is well established that the trial judge has wide discretion in this area and his ruling will not be disturbed on appeal in the absence of manifest error. State v. Rogers, 324 So.2d 358 (La.1975); State v. Thorson, 302 So.2d 578 (La.1974); State v. Vassel, 285 So.2d 221 (La.1973). Under the facts of this case, the trial court clearly did not err in allowing Officer Dunn to testify as an expert witness. There are few areas of scientific expertise subject to absolute certainty. Thus while Officer Dunn’s testimony that the test administered determines only whether there is a high possibility that a stain is seminal fluid is not conclusive proof of the matter at issue, this limitation in no way affects his qualification as an expert witness.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 2, 4 and 5.

By these assignments of error, defendant argues that the trial court erred when it allowed the testimony of Patricia Daniels with respect to the results of laboratory tests she had made to go to the jury and when it permitted the state to refer to a coroner’s physical examination report by Dr. George Bailey and to the laboratory report by Ms. Daniels, when laying the predicate for this testimony.

At trial, out of the presence of the jury, Ms. Daniels, a medical technologist employed by the Orleans Parish Coroner’s Office, testified that on October 29, 1974, she examined a vaginal swab and a vaginal smear taken from a rape victim the previous evening. According to Ms. Daniels’ testimony, ,she found the specimens in a vial in the office refrigerator, the usual procedure when she is not present at the examination. The label on the vial indicated the name of the victim; her race; her age; the date of the examination, i. e., October 28, 1974; and the name of the doctor who had performed the examination, Dr. George Bailey. She further stated that following her analysis of the specimens in. question she discarded them, as was her general policy, and wrote a report on her findings. This report was then filed in the coroner’s office together with Dr. Bailey’s examination report. Over objection of defense counsel, the trial court ruled that a sufficient predicate had been laid to allow the testimony to go to the jury. The foundation was then laid in the presence of the jury and, again over the objection of defense counsel, Ms. Daniels read her report, which stated in effect that a vaginal swab, ostensibly taken from the victim on October 28, 1974, tested positive for seminal fluid, and that a vaginal smear taken from the victim at the same time revealed the presence of spermatazoa.

The bases of defense counsel’s objection are that the trial court allowed Ms. Daniels to read her report to the jury, when Dr. Bailey who had actually conducted the examination of the victim did not testify at trial and when Ms. Daniels had neither taken the specimens from the victim nor been present during the examination; that Dr. Bailey’s report referred only to a vaginal smear, while Ms. Daniels’ report indicated that she tested both a vaginal swab and smear; and finally, that the specimens themselves should have been introduced at trial.

There is no merit to these arguments. The victim of the crime testified that she had been examined in the coroner’s office by Dr. Bailey and that he had taken “something” from her. Ms. Daniels, the medical technologist, testified that the following morning she found a vial in the refrigerator with a label indicating, inter alia, the victim’s name and the name of the examining physician, Dr. Bailey. In addition she testified that she was familiar with Dr. Bailey’s signature, that he had signed the examination report on this victim, and that when she had tested the specimens and made her report, she filed both reports on the victim together, as is the usual procedure in the coroner’s office.

Under the facts of this case, the state laid a sufficient foundation that the specimens were taken from the victim on the night of the rape and thus the testimony could properly go to the jury. It is not required that the evidence presented on the predicate establish beyond a reasonable doubt that the matter tested and reported was connected with the instant case. Rather, if the connexity can be shown by a preponderance of the evidence, the matter is appropriately submitted to the jury and the actual weight it is to be given is then a factual issue for jury determination. See State v. Wolfe, 321 So.2d 335 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). Furthermore, the state’s failure to preserve the specimens after testing by the technologist is not unreasonable. The specimens remain testable for seminal fluid for only twenty-four to forty-eight hours and for spermatozoa for only twelve to twenty-four hours.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 3, 4 and 6.

(Multiple offender hearing)

After defendant was convicted of attempted aggravated rape and prior to sentencing thereon, the district attorney filed a bill of information charging defendant as a fourth offender and requesting an enhancement of sentence pursuant to the provisions of La.R.S. 15:529.1. Following a hearing on this multiple offender bill, the trial judge found defendant to be a second offender and sentenced him to forty years imprisonment. These assignments of error all relate to objections by defense counsel to the evidence introduced by the state against defendant at this proceeding.

Defense counsel argues that the evidence produced by the state was insufficient to prove defendant was a multiple offender due to inconsistencies in the documents introduced and due to the fact that the documents did not state the length of time defendant was imprisoned and the date of his discharge for the prior offenses.

The state’s case against defendant at the multiple offender proceeding consisted of a certified copy of a document from the clerk’s office, Criminal District Court, Parish of Orleans, indicating that an “Alvin Hill” pled guilty to a 1971 charge of theft of an automobile valued at $4,000.00 and was sentenced ot two years in parish prison; a certified copy of a document from that same office indicating that an “Alvin Paul Hill” pled guilty to a 1972 charge of receiving stolen property valued at $4,200.00 and was sentenced to two years in parish prison; the arrest sheets in both of the above incidents which contained the fingerprints taken in connection with these arrests; and the fingerprints of defendant taken in court on the day of the multiple offender hearing. A fingerprint expert testified for the state that the fingerprints in each of the two earlier felonies were the same as those of defendant. However, because of some inconsistencies and discrepancies with respect to the 1971 matter, the trial judge found defendant to be a second offender only, on the basis of the 1972 felony and the conviction which we are presently reviewing, and sentenced him accordingly.

The provisions of La.R.S. 15:529.1 D. instruct the trial judge “to inquire whether the offender has been convicted of a prior felony or felonies, as set forth in the information.” If a defendant, such as defendant in the instant case, is charged as a fourth offender, but the trial judge is satisfied as to proof of only one prior offense, it is appropriate to sentence him as a second offender. Lack of sufficient proof of one or more of the prior felonies set forth in the multiple offender bill of information does not require the entire bill to fall. Under the facts of this case, we are satisfied, as was the trial court, that there was proof that defendant in the instant case was the same individual who pled guilty to receiving stolen property in 1972. The trial judge did not err in finding defendant to be a second offender and in sentencing him accordingly.

Defense counsel also argued in brief that defendant’s second offender sentence was defective because the documents introduced did not specify the date of discharge from prison in connection with the prior offense.

La.R.S. 15:529.1F. provides as follows:

“The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.”

While this subsection of the multiple offender law does set forth one means of proving that a defendant is an habitual offender, it is not the exclusive means of doing so. As previously noted, subsection D of the statute merely instructs the sentencing judge to inquire whether the defendant was previously convicted of the felony or felonies included in the multiple offender bill of information and to enhance the defendant’s penalty as prescribed in subsection A if he finds that there was such a prior conviction or convictions. La.R.S. 1S:529.1D. In addition, the judge must be satisfied that no more than five years has elapsed since the expiration of the maximum sentence of the previous felony conviction or convictions. La.R.S. 15:529.1C.

In the instant case, records from the clerk’s office, Criminal District Court, Parish of Orleans, established that on May 11, 1972, “Alvin Paul Hill” pled guilty to the felony of receiving stolen property valued at $4,200.00; that this offense had been committed on April 20, 1972; and that he was sentenced to serve two years in parish prison. Fingerprint identification established that this earlier felon and the present defendant were one and the same. While the state did not establish the date defendant was discharged from prison, such information would serve no useful purpose under the facts of this case. The state did set forth sufficient evidence that defendant had been previously convicted of a felony. In addition, because there was less than a five year period between the date of commission of the prior offense and the date of the offense which is the subject of the enhancement proceeding, there could be no term of sentence imposed in connection with the earlier felony which could have elapsed more than five years before the date of the present criminal conduct. Under these facts, the sentencing judge did not need to rely on a warden’s or superintendent’s certificate as set forth in La.R.S. 15:529.1F. in order to properly find that defendant was a second offender.

The instant case is distinguishable from State v. Curtis, 319 So.2d 434 (La.1975), where this Court noted that “La.R.S. 15:-529.1, subd. F. sets forth the elements of proof necessary for a prima facie case against a defendant charged under the Habitual Offender Law.” In that case the only evidence introduced against the defendant at the multiple offender hearing were bills of information and certified copies of minute entries which showed that one “Clarence Louis Curtis, Jr.” had been convicted of prior felonies. We concluded that on the basis of this evidence the state had failed to prove that the defendant was the same person as the individual previously charged and convicted. Under those facts, where no prima facie evidence of prior convictions was otherwise established, it was appropriate to find that failure to introduce into evidence a warden’s certificate pursuant to La.R.S. 15:529.1 caused the state’s evidence to fall short of the requisite prima facie case. It was therefore appropriate in that instance to vacate the sentence. In the instant case, however, as set forth above, a prima facie case was established by means other than warden’s certificate, including in particular fingerprint identification in. connection with the prior and present felonies.

In addition to the foregoing an equally valid grounds for finding this argument of defendant non-meritorious is that defense counsel did not object on this grounds at the multiple offender hearing.

These assignments of error lack merit.

For the reasons assigned the conviction and sentence are affirmed.

      . According to Ms. Daniels’ testimony, Dr. Bailey was in Boston undergoing surgery at the time of trial.

      . The state in brief argues that defense counsel did not object at trial when the specimens in question were not introduced. While a formal objection was not made, defense counsel did refer to the failure to introduce the swab and the smear when objecting to the sufficiency of the predicate laid by the state. Since we conclude that this failure did not constitute error, we need not decide whether a proper objection was raised in the instant case.

      . Under the provisions of La.R.S. 15:529.1 A.(l), a defendant found to be a second offender can be sentenced to a “determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.” Since at the time of the commission of the crime, attempted aggravated rape was punishable by imprisonment “at hard labor for not more than twenty years,” La.R.S. 14:27D.(1) (1970) and La.R.S. 14:42, the sentence imposed by the trial judge was within the statutory limits.

      . The state attempted to prove a third prior offense but could not sufficiently establish the identity of the defendant in that case as being the same as this defendant. There were no fingerprints and the sentencing trial judge was unable to independently recall sentencing the defendant in relation to that conviction. Therefore, the trial court sustained defense counsel’s objection to introduction of documents in connection with that alleged prior offense.

      . La.R.S. 15:529.1 0. provides that the provisions of the Habitual Offender Law “shall not he applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted.”

      . The prior offense for receiving stolen property took place on April 20, 1972, while the date of the commission of present crime was October 28, 1974.


text:
    Mrs. Joseph WILLIAMS v. Norma S. BEL and Rene Brunet, Jr.
    No. 57943.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Norma S. Bel, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 329 So.2d 228.

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


text:
    STATE of Louisiana v. Mark TELLIFERO.
    No. 57953.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Mark Tellifero applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

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 Stuart S. Kay, Judge of the 30th Judicial District Court for the Parish of Beauregard, to transmit to the Supreme Court of Louisiana, on or before the 15th day of June, 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 3rd day of September, 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. John R. LANDRY.
    No. 57961.
    Supreme Court of Louisiana.
    May 28, 1976.
   In- re: John R. Landry, applying for writs 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 John S. Covington, Judge of the 19th Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 15th day of June, 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 3rd day of September, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Mrs. Joseph WILLIAMS v. Norma S. BEL and .Rene Brunet, Jr.
    No. 58010.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Rene Brunet, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 329 So.2d 228.

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


text:
    STATE of Louisiana ex rel. Herbert FRAZIER, Jr. v. Hon. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 57827.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Herbert Frazier, Jr. applying for Writ of Mandamus.

Writ denied. The trial court ruled on the application April 29, and therefore the mandamus requested is moot.


text:
    STATE of Louisiana v. Ellis Wayne DAUZART.
    No. 57910.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Ellis Wayne Dauzart applying for Writs of Certiorari, Prohibition, and Mandamus.

Writ refused. The showing made does not warrant the exercise of our supervisory jurisdiction. No error in rulings.


text:
    Doyle LUNEAU v. WALKER-ROEMER DAIRIES, INC. and United States Fidelity and Guaranty Co.
    No. 57924.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Doyle Luneau, applying for supervisory writs.

Writ denied. We can find no abuse of discretion in the grant of á new trial, Louisiana Code of Civil Procedure, Arts. 1972, 1973; nor can we say that La.Code of Civil Procedure, Art. 1978 does not validly apply to a jury trial, at least if the trial court does not deny the plaintiffs the right to recall the witness for the reexamination or cross-examination if the new trial is con ducted before a jury.


text:
    Larry WILLIAMS, Sr., as Administrator of the Estate of his minor daughter, Cathy M. Williams v. Jack V. HARVEY, as Administrator of the Estate of his minor daughter, Kerri Harvey.
    No. 57933.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Larry Williams, Sr., as administrator of the Estate of his minor daughter, Cathy M. Williams, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist.

Writ denied. There is no error in the Court of Appeal opinion.


text:
    STATE of Louisiana ex rel. Charles F. NELSON v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57936.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Charles F. Nelson, applying for writ of habeas corpus.

Denied. The issues presented were considered on applicant’s prior appeal. See State v. Nelson, 261 La. 153, 259 So.2d 46 (1972).


text:
    STATE of Louisiana ex rel. Paul J. LaCOSTE v. C. Paul PHELPS, Warden (acting).
    No. 57937.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Paul J. LaCoste, applying for remedial writs of Mandamus, Prohibition, Injunctive Relief.

Writ denied. Most of the contentions urged have been considered and rejected on the appeal, State v. LaCoste, 256 La. 697, 237 So.2d 871 (1970) and the other contentions present no basis for post-conviction relief.


text:
    STATE of Louisiana ex rel. Donald Ray BUFFETT v. Ross L. MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 57938.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Donald Ray Buffett applying for Writ of Habeas Corpus.

Application denied. Based on the transcript of the evidentiary hearing attached to the application, there is no error in the judgment of the trial court.


text:
    NEW IBERIA COMMUNITY IMPROVEMENT AGENCY v. Carmen O. WALET et al.
    No. 57948.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Dorothy Walet Dauenhauer applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia, 328 So.2d 820.

Writ denied. On the facts of this case, there is no error of law in the judgment complained of.


text:
    CITY OF BATON ROUGE v. Terry L. DESLATTE.
    No. 57949.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Terry L. Deslatte, applying for writ of review.

Not- considered. Application withdrawn by applicant.


text:
    CITY OF BATON ROUGE v. Thomas C. BRUMFIELD.
    No. 57950.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Thomas C. Brumfield, applying for writ of certiorari.

Application denied. The record discloses no error in the judgment of the Court below.


text:
    SOMETHING IRISH COMPANY v. Norman and Lillian RACK.
    No. 57952.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Norman and Lillian Rack, applying for writs of prohibition, certiorari, mandamus and all other needful writs.

Writ denied. Without prejudice to applicant’s pending petition for nullity, this application is denied. No application for rehearing was filed in the Court of Appeal and the district court judgment relief from which is here sought has become final.


text:
    Jenny Lynn Smith MAPES v. NATIONAL FOOD STORES OF LOUISIANA, INC., et al.
    No. 57955.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Jenny Lynn Smith Mapes applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 329 So.2d 831.

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


text:
    Elvena B. Lestremau, wife of and Lucien LESTREMAU v. William E. HALL, Jr. and Allstate Ins. Co. Yves SIMARD v. William E. HALL, Jr. and Allstate Ins. Co.
    No. 57957.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Allstate Insurance Company applying for Remedial Writs.

Writ denied. The court of appeal correctly held: “The application being considered, and time having been allowed for opposition, and this court being of the opinion that the ‘right to jury trial’, C.C.P. 1731, afforded by presumptively constitutional legislation cannot be limited except by legislation or by appropriate adjudication that the right-affording legislation is unconstitutional.

“IT IS ORDERED that the Order of February 18, 1976, insofar only as it required the posting of case (rather than simple bond as provided by La.R.S. 13:3050), be vacated.”


text:
    STATE of Louisiana v. Mack Charles GAY.
    No. 57967.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: Mack Charles Gay applying for Supervisory Writs.

Writ denied. Insufficient showing to warrant the granting of the relief sought.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Theodore A. LIROCCHI.
    No. 57972.
    Supreme Court of Louisiana.
    May 28, 1976.
   In re: State of Louisiana, through the Department of Highways applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 329 So.2d 803.

Writ Denied. Under the facts found by the court of appeal, the result is correct.


author: MILLER, Judge

text:
    LOUISIANA RESOURCES COMPANY v. Ferdinand J. DOBBERTINE. LOUISIANA RESOURCES COMPANY v. Anna DOBBERTINE et al.
    Nos. 5539 and 5540.
    Court of Appeal of Louisiana, Third Circuit.
    April 21, 1976.
    Dissenting Opinion April 22, 1976 in No. 5539.
    Raggio, Farrar, Cappel & Chozen by Thomas L. Raggio, Lake Charles, for defendant-relator.
    Jones & Jones by Jerry G. Jones, Cameron, for plaintiff-respondent.
   In re: Ferdinand J. Dobbertine and Anna Dobbertine, et al. Applying for Writs of Mandamus and Certiorari.

WRITS DENIED: The application is denied. There appears to be no error or abuse of discretion in the ruling complained of.

MILLER, J., dissents and will assign written reasons.

Before MILLER, WATSON and GUIDRY, JJ.

MILLER, Judge

(dissenting).

This application for writs was placed before this panel of judges on the afternoon of April 20. On the morning of April 21, the writ was denied. On the afternoon of April 21, the day before the expropriation suit is to be tried, I present these reasons for voting to grant the writ and stay the proceedings.

I respectfully submit the majority erred in refusing to grant writs and stay the trial court proceedings until the non-resident defendant relator Ferdinand J. Dob-bertine has had adequate time to prepare a defense to the expropriation proceedings filed by plaintiff respondent Louisiana Resources Company. See Louisiana Resources Company v. Edwards, 329 So.2d 477 (La.App. 3 Cir. 1976); Louisiana Resources Company v. Greene, 329 So.2d 479 (La.App. 3 Cir. 1976); and Louisiana Resources Company v. Pere, 329 So.2d 480, (La.App. 3 Cir. 1976), where, in somewhat similar situations, this court granted writs and stayed the proceedings.

This expropriation suit, along with numerous others affecting property owners in Cameron Parish, was filed March 17, 1976. The curator-ad-hoc appointed to represent the absentee landowners addressed letters to them on March 23rd, and the letters were received on or about March 25. Landowner set about to employ counsel and this was arranged on March 31st. Responsive pleadings were filed April 1, 1976, the last day landowner could attack the necessity of the taking.

When the expropriation proceedings were filed the trial date was set by ex parte order for April 22, 1976. At landowner’s counsel’s request the trial court signed an order on April 6, 1976 upsetting the April 22, 1976 fixing. On April 12, 1976 landowner was notified that April 22, 1976 had been set as the trial date for his exceptions of prematurity, vagueness, and no cause and/or no right of action, together with his timely filed defense that Louisiana Resources could not establish the necessity for the taking.

On or about April 14, 1976 landowners served interrogatories upon the expropriating party. Relators represent to us that since their attorneys have been employed, they have been busily engaged preparing their defenses. Among other things, they have attempted to obtain copies of the rules and regulations of the Conservation Commissioner relative to the granting of permits for “intrastate natural gas transporters”, and to obtain copies of the transcript of a hearing which landowners understand was held on respondent’s application for a certificate of transportation. Landowner’s counsel has been advised the transcript of the hearing or hearings has not yet been completed. Landowner is entitled to a judicial determination on whether the purpose of this taking is public and necessary. Art. 1, Section 4, Louisiana Constitution of 1974. If this judicial determination must be made in East Baton Rouge Parish, landowner should have his opportunity to proceed in that forum.

Plaintiff’s petition merely alleged it is constructing a gas pipeline to serve the public with natural gas and to meet the increased public demand for such service. Landowners submit this is vague and that the expropriating authority has failed to clarify this allegation in its response to landowner’s interrogatories.

Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. Art. 1, Section 4, Louisiana Constitution of 1974. This same article of the constitution provides that “Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question.”

It is a fundamental rule of statutory construction that expropriation laws are in derogation of common right and are to be strictly construed. Louisiana Power and Light Co. v. City of Houma, 229 So.2d 202, 207 (La.App. 1 Cir. 1969). Expropriation laws and proceedings are special and exceptional in character since they are in derogation of the common right to own property, and thus must be strictly construed and highly scrutinised. Every step in the proceeding must bear the same degree of thorough examination to insure that the landowner is at all times afforded protection against the power of the taker. Texas Gas Transmission Corp. v. Soileau, 251 So.2d 104 (La.App. 3 Cir. 1971).

I understand the majority to hold that since LSA-R.S. 19:5 permits trial of expropriation cases within 20 days after landowners have been served, trial courts have discretionary authority to require such a speedy trial in any case. I respectfully submit the trial court’s decision, and now ours, effectively deprives this landowner of his day in court, and may very well deprive him of his property without due process of law.

If the majority is correct, the matter should be addressed by the legislature to the end that Louisiana landowners might have an opportunity to meet expropriating authorities after both have had adequate opportunity to prepare their case for presentation to the court. If the expropriating authority had but twenty days to prepare its case before it was filed, then it would be entirely in order to hold landowner to the same timetable. Landowner has made a credible allegation that the expropriating authority has undoubtedly spent months preparing itself for this litigation. It chooses the time for filing each of the multiplicity of its suits. It should not also have the right to demand immediate trial of those selected cases which it desires to have made “the test cases.” If the trial court decided which of the expropriating authority’s numerous suits was to be so speedily tried, the advantage of the expropriating authority would be reduced. The expropriating authority should not have the advantage given to District Attorneys in criminal cases: — to select which cases he will press to immediate trial and which are to remain for trial at a later date.

Landowner is entitled to have expropriation proceedings strictly construed against the expropriating authority and to have the proceedings highly scrutinized. To afford this protection, I would grant the applications for writs and the stay order.


author: LEMMON, Judge.

text:
    NEW ORLEANS PUBLIC SERVICE, INC. v. CHECKER CAB COMPANY and J. C. Kennedy.
    No. 7448.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      Chaffee, McCall, Phillips, Toler & Sarpy Wiley G. Lastrapes, Jr., New Orleans, for plaintiff-appellee.
    James G. Maguire, New Orleans, for defendants-appellants.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   LEMMON, Judge.

This is a suit for damages against the owner and the driver of a taxicab which allegedly struck and damaged plaintiff’s street light pole. After defendants’ answer denied all allegations, plaintiff filed a request for admissions of fact. Defendants responded by admitting ownership and driver’s status, but objected to certain of the requests, including a request to admit the cab struck the pole, on the basis that this was a controverted legal issue. When ordered by the court to respond to the request, defendants denied the fact.

At the trial plaintiff presented the investigating officer, who testified that upon arriving at the scene he found the cab adjacent to the pole, which had been knocked down on the neutral ground. He further testified that the driver admitted striking the pole, first stating that he had fallen asleep but later denying the statement.

At the conclusion of the trial plaintiff’s counsel moved, pursuant to C.C.P. art. 1514, that the court order payment of reasonable expenses and attorney’s fees incurred in proving the fact which defendants had denied under oath after being served with a request to admit the truth of the fact.

The trial court rendered judgment for the amount of damages proved and for $100.00 as attorney’s fees for gathering and presenting proof of the fact that the cab had struck the pole. Defendants appealed, questioning only the award of attorney’s fees.

The matter of fact, which plaintiff requested defendants to admit, was one of substantial importance that plaintiff was required to prove in order to make out a prima facie case. Because of the denial it was necessary to locate and produce the investigating officer. Defendants did not show any reasons why the fact could not have been admitted or denied, or why they ultimately denied the fact that the cab struck the pole. Neither did they show they had reasonable grounds to believe they might prevail on this particular factual matter at trial. They simply responded with an unqualified denial, although the truth of the fact was undoubtedly within defendants’ knowledge.

The purpose of sanctions against parties who unjustifiably resist discovery is to make the discovery articles effective. C.C.P. art. 1496 was designed to require the admission of facts which ought not to be disputed at trial, so as to eliminate the time, trouble and expenses of proving un-controverted facts. Voisin v. Luke, 249 La. 109, 191 So.2d 503 (La.1966); Hudson v. Maryland Cas. Co., 241 So.2d 567 (La.App. 2nd. Cir. 1970). C.C.P. art. 1514 makes the admissions procedure workable by imposing the cost of proof upon the litigant who improperly refuses to admit a matter. See 8 Wright and Miller, Federal Practice and Procedure § 2290 (1970), discussing Federal Rule 37(c). See also New Orleans Public Service, Inc. v. Jet Cab Co., Inc., 290 So.2d 381 (La.App. 4th Cir. 1974).

We conclude the trial court properly ordered the defendants to pay expenses and attorney’s fees for unjustified failure to admit the fact the cab had struck the pole.

Finally, defendants contend plaintiff failed to prove the amount of expenses and attorney’s fees.

The policeman was produced solely to prove this fact (after which defendants had the burden of proceeding with evidence to exculpate themselves from liability for striking the pole.) The record revealed that plaintiff subpoenaed the policeman three times and was required to obtain continuances of the first two trial dates specifically because the policeman was unable to attend court on the dates scheduled. While itemized proof of expenses and of hours charged by the attorney might have justified a higher award, the record as presently constituted supports the award which was made.

The judgment is affirmed.

AFFIRMED.

      . C.C.P. art. 1514 provides:
      “If a party, after being served with a request under Article 1496 to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the geninueness of any such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.”

      . Rule 37(c), as amended in 1976, applies not only to sworn denials, but to any failure to admit.

      . Plaintiff’s counsel informed us that the trial his prepared list of expenses. judge ruled on his motion before he introduced


author: BOUTALL, Judge.

text:
    Norma Solar, wife of and Rockford SOLAR v. CITY OF KENNER et al.
    No. 7394.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Norman Mopsik, J. D., New Orleans, for Norma Solar, wife of/and Rockford Solar, plaintiffs-appellants.
    Philip K. Jones, Baton Rouge, Marshall W. Wroten, and Jesse S. Guillot, New Orleans, for the Louisiana Dept, of Highways, defendants-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Appellee has filed a motion to dismiss this appeal because of untimely filing of the appeal bond.

The record in this case reveals the following : Judgment was rendéred adverse to appellants on February 24, 1975. As the matter was not taken under advisement and there was no request for notice of the signing of the judgment, no such notice was required (LSA-C.C.P. Art. 1913). There was no application for a new trial. On May 20, 1975 the trial court signed a devolutive appeal order, setting the security at $250.00. The appeal bond was filed into the record on June 10, 1975.

C.C.P. Article 2087 sets out the delay period in which a devolutive appeal may he taken. Since there was no application for a new trial, appellants had 97 days from the date the judgment was signed in which to perfect their appeal. In order to perfect an appeal and to attach jurisdiction to this court, an appellant must timely file his security within the delay period. C.C.P. Article 2088. The record reflects that these appellants filed their bond on the 106th day, clearly beyond the time allowed.

Appellants offer illness of the surety as excuse for this excessive delay. The statute provides no such basis for relief from its application. The appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.


author: CULPEPPER, Judge.

text:
    Stephen J. GENNUSO d/b/a Professional Bonding Service, Plaintiff-Appellant, v. STATE of Louisiana, Defendant-Appellee.
    No. 5416.
    Court of Appeal of Louisiana, First Circuit.
    March 10, 1976.
    Logan & DeLaunay, by Gerald C. De-Launay, Lafayette, for plaintiff-appellant.
    Frank T. Salter, Jr., Dist. Atty., and Charles W. Richard, Asst. Dist. Atty., Lake Charles, for defendant-appellee.
   ON MOTION TO DISMISS APPEAL

Before CULPEPPER, DOMENGEAUX and PAVY, JJ.

CULPEPPER, Judge.

The defendant-appellee, the State of Louisiana, moves to dismiss the appeal of the plaintiff-appellant, Stephen J. Gennuso d/b/a Professional Bonding Service, on the grounds that this court does not have appellate jurisdiction over the subject matter of this appeal.

We dismiss plaintiff-appellant’s appeal.

The pertinent facts, briefly stated, are as follows: On April 21, 1969, three bonds totaling $15,000.00 which had been underwritten by Stephen J. Gennuso d/b/a Professional Bonding Service, were forfeited when William Howard Hudson failed to appear for trial on that date. A judgment of forfeiture was signed on April 21, 1969, and on January 11, 1971 the defendant Stephen J. Gennuso filed an application for a new trial on the bond forfeiture. A hearing on the application for a new trial was held on February 2, 1971, and was denied as not being timely filed. The defendant first appealed to this court, which, on a Motion to Dismiss filed by the State, dismissed the appeal on the grounds that the Supreme Court has exclusive appellate jurisdiction over bail bond forfeiture proceedings. State v. Hudson, 247 So.2d 398 (La.App. 3rd Cir. 1971). The appellant subsequently appealed the denial of a new trial to the Louisiana Supreme Court, which affirmed the District Court’s decision forfeiting the bonds. State v. Hudson, 261 La. 555, 260 So.2d 621 (1972).

On April 26, 1971, the appellant filed the present suit to have the judgment of bond forfeiture declared null on the grounds that the plaintiff was not given written notice of the appearance date as required by LSA-C.Cr.P. art. 337. Trial was held on March 13, 1975, and judgment was rendered in favor of the State of Louisiana and against the plaintiff, and the plaintiff has perfected an appeal to this court.

It is well settled that while an appearance bond forfeiture proceeding may be properly characterized as a civil proceeding, since it is predicated upon the civil liability which flows from a suretyship contract between a surety and the state, it is nevertheless considered a criminal proceeding for the purposes of determining appellate jurisdiction. An appeal from a judgment decreeing the forfeiture of a criminal bail bond, therefore, lies directly to the Supreme Court. State v. Hudson, supra. See also State v. Shelton, 227 La. 27, 78 So.2d 498 (1955); State v. United Bonding Insurance Company of Indianapolis, Ind., 244 La. 716, 154 So.2d 374 (1963); State v. Kunzler, 248 La. 133, 177 So.2d 112 (1965); State v. Watson, 249 La. 789, 191 So.2d 500 (1966); State v. Ledener, 253 La. 915, 221 So.2d 47 (1969). While we can find no statute or jurisprudence dealing directly with an action to declare null a bail bond forfeiture judgment, it is only logical to conclude that if the Supreme Court has exclusive jurisdiction of a case dealing with a bail bond forfeiture it would also have exclusive appellate jurisdiction of a case attempting to declare null a bail bond forfeiture judgment.

For the reasons assigned the plaintiff-appellant’s appeal is hereby dismissed.

APPEAL DISMISSED.


text:
    Stephen J. GENNUSO, d/b/a Professional Bonding Service, Plaintiff and Appellant, v. STATE of Louisiana, Defendant and Appellee.
    No. 5416.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      Logan & deLaunay by Gerald C. de-Launay, Lafayette, for plaintiff-appellant.
    Charles W. Richard, Dist. Atty., Frank T. Salter, Jr., Lake Charles, for defendant-appellee.
   ON REHEARING

Before CULPEPPER, DOMENGEAUX and PAVY, JJ.

CULPEPPER, Judge.

In an opinion rendered on March 10, 1976 we dismissed plaintiff’s appeal in this matter on the grounds that it is a criminal proceeding of which the Supreme Court of Louisiana has exclusive appellate jurisdiction. Subsequently, we granted plaintiff’s application for a rehearing, limited to the question of whether the appeal should be transferred to the Supreme Court, rather than be dismissed.

LSA-C.C.P. Article 2162 provides:

“An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.
“If an appeal is taken to an appellate court which has no jurisdiction over it, the court may transfer the appeal to the proper court, upon such terms and conditions as it may prescribe. If an appeal is transferred to the supreme court in error, the supreme court may transfer of retransfer it to the proper court.”

LSA-R.S. 13:4441 also provides that when an appeal is taken to an appellate court having no jurisdiction thereof, the court “may” transfer it to the court having jurisdiction, instead of dismissing the appeal.

Jurisprudence under these statutory provisions has established the general rule that an appeal should be transferred, rather than dismissed. Soniat v. Clesi, 165 La. 426, 115 So. 644 (1928); Smith v. Atkins, 37 So.2d 384 (La.App.2d Cir. 1948); Thibodeaux v. Pacific Mutual Life Insurance Company, 231 La. 617, 92 So.2d 385 (1957); Bernard v. Grimmett & James, 111 So.2d 862 (La.App.1st Cir. 1959); United States Fidelity & Guaranty Company v. Aetna Casualty & Surety Company, 293 So.2d 197 (La.App.2d Cir. 1974).

Although this matter involves a bond forfeiture which occurred in 1969, we now conclude that instead of dismissing the appeal we should transfer it to the Louisiana Supreme Court.

For the reasons assigned, our original opinion in this matter is amended so as to transfer this appeal to the Louisiana Supreme Court, instead of dismissing it.

APPEAL TRANSFERRED TO LOUISIANA SUPREME COURT.


author: WATSON, Judge.

text:
    Kenneth TAYLOR, etc., Plaintiff-Appellee, v. BOARD OF LEVEE COMMISSIONERS OF the TENSAS BASIN LEVEE DISTRICT, Defendant-Appellant.
    No. 5437.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      Coenen & Berry by James W. Berry, Rayville, for defendant-appellant.
    Reeves, Lossin & Owens by H. James Lossin, Jonesville, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This appeal concerns property taken for levee purposes and its value. Plaintiff, Kenneth Taylor, filed suit, individually, and as agent and attorney-in-fact for D. M. Wood, a co-owner of Ogden Plantation, against defendant, the Board of Levee Commissioners of the Tensas Basin Levee District, asking $8,600 for 3.44 acres of land in Catahoula Parish which the defendant levee district appropriated. The suit was consolidated for trial and appeal with docket No. 5438, Taylor v. Board of Levee Commissioners of Tensas Basin Levee District, 332 So.2d 500, which involves the alleged loss of a soybean crop on the parent tract of 7.4 acres caused by construction of the same levee. A separate opinion has been rendered in No. 5438.

The trial court concluded that the property is non-riparian, and the levee district did not have the right of appropriation it claimed. However, since the owners were not opposed to the taking per se, the trial court decided the matter on the levee district’s alternative plea for expropriation; evaluated the property taken; and considered the damage, if any, to the remainder. The trial court concluded that the 3.44 acres were worth $1400 per acre or a total of $4,816; loss of a soybean crop on the 7.4 acre parent tract was valued at $400. Ownership of the 3.44 acres was vested in the levee district. Mineral rights were reserved to the former owners. Taylor and Wood were also given a permanent servitude of passage along the top of the levee. The defendant levee district was ordered to construct and maintain a ramp across the property expropriated to afford a permanent servitude of passage to Taylor and Wood in perpetuity in lieu of severance damages. The levee district was cast for all costs.

The Board of Levee Commissioners of the Tensas Basin Levee District has appealed in both cases and plaintiff Taylor has answered both appeals.

The levee district contends in No. 5437 that the trial court erred: in holding that the property taken was not riparian and thus not subject to appropriation; in finding the fair market value of the property taken to be $1400 per acre; and in assessing all costs to the levee district. In No. 5438, the levee district contends that the trial court erred in awarding plaintiff Taylor damages for the loss of his 1973 soybean crop.

Plaintiff Taylor’s answer in No. 5437 asserts: that he should have been awarded $2500 rather than $1400 per acre and severance damages to the remainder of the tract of $10,000; that the appeal of the levee district is purely frivolous and he is entitled to damages of $5,000 under LSA-C.C.P. art. 2164 and attorneys’ fees of $5,000. In No. 5438, plaintiff Taylor contends that he is entitled to an increase in damages from $400 to $1,298.70, plus $740 for depreciation of the remainder of his land. However, counsel for plaintiff Taylor conceded in oral argument that his requests for increases in the awards have been abandoned.

Article 16 of the Louisiana Constitution of 1921 is entitled “Levees” and provides in § 6 as follows:

“Section 6. Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes, * * *, shall be paid for at a price not to exceed the assessed value of the preceding year; * * * ”.

The compensation provided for in this article has been characterized as a gratuity on the theory that LSA-C.C. art. 665 provides a legal public servitude for the state on the shores of navigable rivers for the purpose of levees and thus the servitude does not have to be acquired with just compensation for the owners as in all other takings. A taking for levee purposes is characterized as an appropriation rather than an expropriation. Appropriation by the state is restricted to riparian property which: fronted on a navigable river when the tract was first separated from the sovereign; and is reasonably necessary for levee and flood control system on that river. Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749 (1956). A. K. Roy, Inc. v. Board of Commissioners, 237 La. 541, 111 So.2d 765 (1959). The appropriating body bears the burden of proving the riparian character of the land as a pre-requisite to acquiring the servitude. Board of Com’rs for Pontchartrain L. Dist. v. Baron, 236 La. 846, 109 So.2d 441 (1959). The trial court here concluded that the levee district did not sustain its burden of proof and thus awarded the actual rather than assessed value of the land.

The first issue is whether there is manifest error in the factual conclusion that plaintiff’s land is nonriparian.

The evidence shows that the property is not riparian and was not riparian in 1845 when a patent was issued from the United States. The property does not abut a navigable stream. It was taken during a 1973 flood for a ring levee to protect the Catahoula Parish Hospital and Garan Industries. The levee district does not contend that the property is riparian but rather that this court should ignore the jurisprudence in Delaune and Roy, supra, and follow the older decision of Board of Com’rs of Tensas Basin Levee Dist. v. Franklin, 219 La. 859, 54 So.2d 125 (1951), appeal dismissed per curiam, 342 U.S. 844, 72 S.Ct. 80, 96 L.Ed. 638. The Franklin decision has been criticized as “shockingly broad”, 40 Tul.L.R. 263. While appropriation of riparian land was found in General Box Company v. United States, 351 U.S. 159, 76 S.Ct. 728, 100 L.Ed. 1055 (1956) not to violate the Due Process Clause of the Fifth Amendment, there is no justification for its extension to nonriparian property.

The second issue presented for decision is whether the award for the taking is excessive, as the levee district asserts. This suit was filed August 1, 1974, and the measure of compensation is provided by LSA-R.S. 19:9 , prior to its 1974 amendment, effective January 1, 1975.

There were four appraisals: R. M. Cotton and O. L. Jordan for the levee district; D. L. Cox and M. C. Gehr for plaintiff.

Both Cotton and Jordan found the property’s highest and best use to be agricultural. They did not find severance damage to the remainder; their testimony and reports indicate the remainder was actually improved by the taking and construction of the levee.

Cotton and Jordan found the property’s highest and best use to be agricultural. They did not find severance damage to the remainder; their testimony and reports indicate the remainder was actually improved by the taking and construction of the levee.

Cotton’s report states that farm property such as this had a top price of $425 per acre prior to January, 1974. He found few comparables: the sale of the whole of Ogden Plantation, 598 acres at approximately $325 per acre in December, 1971; a sale of one acre to D. M. Wood for $500; and the sale of one-and-a-half acres by Dorothy and Joel Stevenson to Phillip and Shirley Williams for $1,670 per acre in May, 1970. Cotton stated that the latter sale is not a good comparable because the one-and-a-half acres consist of good level land bordering Highway 84 on the south and also fronting on Little River and could be classified as commercial rather than farm land. Cotton testified that the subject property was approximately 12 feet below the highway and was inaccessible before the taking and the building of the levee, which improved the property.

Jordan testified that the subject property is lli/£ feet below the highway grade and has neighboring property which is level with the highway and provides more desirable ingress and egress. Jordan admitted that the area was rural, residential, but felt that the subject property was unsuitable for any type of building. Appraiser Jordan found a lack of comparables, the only one mentioned in his report is Ogden Plantation itself; his figures for this sale are slightly different from Cotton’s. Jordan describes it as a 573.814 acre tract at $338.-70 per acre or a total of $194,350.00. This sale resulted from a lease-purchase option dated July 28, 1965, a considerable time before the taking. The 3.44 acres taken were valued by Jordan as 1/3 the average per acre price of the Ogden Plantation sale as a whole or $212.36 an acre.

M. C. Gehr presented a more professional and complete appraisal. Gehr testified that the highest and best use of the property is for rural residential purposes, although it does not have sewerage service or a sewer system. The parent parcel from which the 3.44 acres were taken is located about one-and-a-half miles from the west city limits of Jonesville, Louisiana, on U. S. Highway 84. Seven compa-rables were considered in finding a value of $2,000 per acre; the value of the 3.44 acres taken being estimated by Gehr at $6,880. The remainder was valued at $1500 per acre after the taking; severance damage to the remainder being $2,030. One comparable, a tract of land adjoining the subject property on the north, was sold in April, 1974, for $1,955.00 per acre. Access to U. S. Highway 84 from this tract is better than from the subject tract and the location and utilities are also superior to that of the property in question.

Appraiser D. L. Cox arrived at the same $2,000 per acre value for the land taken for a total of $6,880 and estimated damage to the remainder at $3,000. Cox also utilized seven comparable sales.

James M. Hawkins, engineer for the Louisiana Department of Public Works, testified that the average highway elevation adjacent to the subject property is 60 feet above mean sea level, while the property itself is between S3 and 54.7 feet above mean sea level. The adjoining property on the east toward the town of Jones-ville is between 58.5 and 59 feet above mean sea level, making the latter property higher and more desirable.

John Arthur Routon, county supervisor for the Farmer’s Home Administration in Jonesville, testified that he is familiar with the property, which was not served by ah all-weather road prior to the taking and the building of the levee. There was no access to the property from the road because of a ditch; any houses proposed for this tract and the 74-acre adjacent tract would not have been approved for a home loan.

The trial court concluded that the best comparable sale was that of an adjacent tract of land from Joel Stevenson and his wife to George Griffing, Curtis P. Beard, et al, the price of that transaction being $2,070 per acre for 74.5 acres or a total of $154,215.00. The trial court found the subject property to be less valuable because of its lower elevation and smaller size and awarded $1400 per acre. It is contended that this adjustment in value by the trial court constitutes a substitution of its opinion for that of the appraisers. We disagree. The trial court arrived at a figure which reflects the evidence as a whole. No manifest error appears in the trial court’s factual determination of the value of the expropriated property. A trier of fact is not required to accept the entire testimony of any one witness but can properly consider those portions of all the testimony and reports which he considers most reasonable and logical. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972).

Plaintiff Taylor also contends that he is entitled to severance damages to the remaining property of $10,000. Although Gehr and Cox found severance damage to the remainder, Cotton and Jordan indicated that the remainder improved in value after the taking. The trial court concluded that the remainder of the tract suffered no diminution in value as a result of the taking and that the levee itself improved the access to the property. This conclusion has a reasonable evidentiary basis and an award for severance damages is not indicated. The trial court then ordered that an access ramp be built for the landowner by the levee district “ . . .in lieu of severance damages.” (TR. 67), but the parties do not complain about this portion of the judgment. Although it is not in the record, there was apparently a stipulation that the levee district would provide access to the property.

In regard to the other issues, we find no error in the assessment of costs against the levee district. No tender of the value of the property has been made to the owners. LSA-R.S. 19:12; Orleans Parish School Board v. Brown, 245 La. 792, 161 So.2d 274 (1964); cert. den. 379 U.S. 819, 85 S.Ct. 40, 13 L.Ed.2d 31. We also find no merit to the contention that the appeal of the levee district is purely frivolous entitling plaintiff Taylor to attorneys’ fees and damages. The value of the land expropriated presents a difficult question for decision. While there is no manifest error in the trial court’s evaluation, the wide discrepancy in the appraisals encouraged the levee district to seek a different appellate opinion.

Plaintiff Taylor is not entitled to attorneys’ fees.

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of defendant-appellant, The Board of Levee Commissioners of the Tensas Basin Levee District,

AFFIRMED.

      .LSA-C.C. art. 665.
      “Art. 665. Servitudes imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads and other public or common works.
      All that relates to this kind of servitude is determined by laws or particular regulations.”

      . This distinction is preserved in the 1974 Louisiana Constitution which states in Art. 1, § 4, that:
      “ * * * just compensation * * * shall not apply to appropriation of property necessary for levee and levee drainage purposes.”

      . LSA-R.S. 19:9.
      “In estimating the value of the property to be expropriated, the basis of assessment shall be the value which the property possessed before the contemplated improvement was proposed, without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.”

      . LSA-R.S. 19:12.
      “§ 12. Tender of true value refused ; costs
      If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.”


text:
    Kenneth TAYLOR, Plaintiff-Appellee, v. BOARD OF LEVEE COMMISSIONERS OF the TENSAS BASIN LEVEE DISTRICT, Defendant-Appellant.
    No. 5438.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Coenen and Berry by James W. Berry, Rayville, for defendant-appellant.
    Reeves, Lossin and Owens by H. James Lossin, Jonesville, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This matter was consolidated for trial and appeal with No. 5437, Taylor v. Board of Levee Commissioners of Tensas Basin Levee District, 332 So.2d 495, in which a separate opinion has been rendered. No. 5437 is concerned with the taking of 3.44 acres from a parent tract of 7.4 acres in Catahoula Parish for levee purposes and the value of the taking. This suit is concerned with the damages allegedly sustained by plaintiff’s 1973 soybean crop and depreciation of the remainder of the farm land due to disturbance of the subsoil and topsoil.

The trial court concluded that plaintiff Taylor had lost his 1973 soybean crop which the trial court estimated at approximately 90 bushels. Damages as a result of the loss of his crop were valued at $6.50 per bushel or $585 gross, less $185 expenses, for a loss of $400. Plaintiff Taylor was given judgment against the levee district for $400.00; the levee district has appealed and plaintiff Taylor has answered the appeal. The facts are essentially those in suit No. 5437. In essence, the levee district contends on appeal that the trial court erred in awarding plaintiff damages for loss of his 1973 soybean crop on the ground that the loss was not proved with the requisite legal certainty. Plaintiff Taylor contends that the award is inadequate and should be increased to $1,298.70, although his counsel conceded in oral argument that this contention has been abandoned.

No manifest error appears in the conclusion that plaintiff lost his 1973 crop due to the actions of the defendant levee district and no abuse of discretion in the award of damages sustained as a result. The judgment of the trial court is affirmed. All costs are assessed against defendant-appellant, Board of Levee Commissioners of the Tensas Basin Levee District.

AFFIRMED.


author: PAVY, Judge.

text:
    Ella Istre DUGAS, Plaintiff-Appellee, v. Andrew DUGAS, Defendant-Appellant.
    No. 5478.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      Edwards, Stefanski & Barousse, Crowley by Jean Pierre Lendais, Lafayette, for defendant-appellant.
    Pugh, Boudreaux & Gachassin, by No-cholas Gachassin, Jr., Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER and PAVY, JJ.
   PAVY, Judge.

Defendant-husband appeals a $250-per-month permanent alimony award in favor of his wife and contained in a judgment of divorce dated October IS, 1975. In 1973, the parties had been judicially separated and entered into a partition of their community property.

Appellant challenges the allowance of any alimony at all on the three grounds. First, he contends that, in the community settlement, the wife waived her rights to the husband’s pension, that the pension is the only asset he has left and that to allow her to claim alimony because of the pension and/or to execute on same would be contrary to the settlement agreement. Although, there was a written settlement agreement, it was not put in evidence. Both parties testified vaguely to the effect that the settlement agreement contained a relinquishment by the wife of her interest in the husband’s pension. Neither testified that the waiver in any way affected the wife’s alimony rights. We think it was incumbent on the husband to clearly show the parties’ intention. Without such clear showing, we cannot give the agreement such effect. Counsel argues that the waiver should be so construed to render it effective because, due to the husband’s slated retirement, the pension will be his only income and by claiming alimony the wife will in effect gain an interest in the pension. The wife’s alimony rights and her community interest rights are separate and distinct consequences of the marital relationship. There is much interplay between these rights and they can affect each other in various ways. However, we know of no authority to the effect that the relinquishments by the wife of her interest in a community asset bars her from using that asset or its revenue as a basis to determine the amount of alimony or to execute on such asset in the event alimony is in arrears. We see nothing inconsistent between the wife relinquishing a community asset and claiming alimony though the claim for alimony may touch upon or affect the relinquished asset.

Next, appellant claims there was an agreement at the time of the judicial separation that the alimony would terminate after one year. The wife had no recollection of this. The husband did not testify to it. A daughter-in-law said she heard some discussion that the alimony was on a one-year basis. Attorneys for both parties distinctly denied that there was any such agreement. Apparently, the daughter-in-law understood nothing more than a discussion regarding the change from pen-dente lite to permanent alimony at the contemplated divorce one year later. We think the appellant’s proof fails on this issue.

Counsel further contends that alimony should not be granted because the wife has sufficient means for her maintenance as provided by Civil Code Article 160. In the property settlement, the wife was granted the home, its furnishings and an old-model car. Counsel for the husband claims she sold the home for $24,500 and purchased another one for $5,000 so that she is possessed of liquid assets of $19,500 and this amount constitutes sufficient means for her maintenance. The record contains an act of cash sale by the wife of the home property for the sum of $24,500 and a sale to her of a lot of ground for $5,000. The deeds were simultaneously executed before the same notary, with common witnesses and appear to be part of one transaction. The wife, of very limited education, explained that the community home was in disrepair and that she swapped it for a lot and an agreement to build a house on the lot. She denied receiving any cash out of the transaction. Other than the formal recitals in the deed, there was no contradiction of her explanation. It is plausible. The trial judge apparently believed her. He did not consider that she had sufficient means for her maintenance. We are satisfied that the trial judge did not commit manifest error in holding that the wife did not have sufficient means for her maintenance. Besides the home, the wife has the old car and the home furnishings both of which she needs. She erratically earns $20 to $30 per month as a babysitter. We cannot conclude that a wife with such meager income, no liquid assets and only a home with furnishings, which themselves are only a part of her maintenance, is possessed of such sufficient means as will bar her right to alimony.

Appellant challenges the amount of the award as excessive. The husband had been making over $1,000 a month but testified that he was unable to be on the road any longer and that his salary had substantially decreased. He offered some check stubs showing a much less salary. However, earnings for nine months prior to the trial did not reflect the great change claimed by him. These show that he earned over $11,000 for the first nine months of 1975. With ample basis, the trial court found he was making at least $800 per month. The husband’s list of living expenses totalled $811 of which $158 was for payment of a note for a trailer in which he was living with a friend but in which he had no interest. • The wife’s list of expenses totalled $326. They are modest and in line. The $250 award was well within the range of reasonableness and we will not disturb it.

Lastly, appellant claims that, at the time of brief and oral argument, he had retired on a substantially reduced income and the alimony set in October, 1975, should be reduced. We are unable to make such a ruling. The record before us only shows that, according to his testimony at the hearing, he was slated to retire in March, 1976. This court has no original jurisdiction and cannot accept evidence and we must disregard counsel’s statement however sincere it might be. Further, the proper procedure for appellant is to ask fop a reduction based on change of circumstances by proceedings in the lower court. That remedy remains with him. Neither the trial court’s judgment nor this court’s affirmance of it will foreclose reconsideration of the amount because of changed circumstances occurring subsequent to the date of the hearing in the trial court.

For reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be borne by appellant.

AFFIRMED.