author: SUMMERS, Justice.

text:
    STATE of Louisiana v. James WILLIAMS.
    No. 61772.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Brian Perry, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Justice.

On June 26, 1975 James Williams was indicted by the Grand Jury of Orleans Parish for aggravated rape, alleged to have been committed on June 14, 1975. La.Rev. Stat. 14:42. The record sheds little light on the circumstances surrounding this charge save that set forth in the arrest register. From this source we learn that the offense occurred in the city of New Orleans at 4:45 a. m. on June 14, 1975. Williams was arrested approximately eight hours later and positively identified by the victim. The weapon used was a knife.

The accused was represented by counsel, who alleged in a motion on July 28, 1975 that Williams was apparently deaf and dumb and he was therefore unable to communicate with his counsel and that testing was necessary to ascertain his true physical state. Accordingly on the same day the trial judge ordered the sheriff to transport Williams to the Louisiana State University Medical Center in New Orleans, Department of Audiology and Speech Pathology.

On August 1, 1975 the LSU Speech and Language Clinic reported to defendant’s counsel. The report set forth:

“This 22 year old man was seen at the LSU Medical Center Speech and Language Clinic on July 31, 1975 for speech and language evaluation to determine communication deficits secondary to hearing loss. He currently is detained at Orleans Parish Prison charged with aggravated rape.
History
“Mr. Williams was brought to this Clinic by a prison deputy, but his mother and several brothers and sisters also came to the appointment and were helpful in providing background data.
“The mother reported that her pregnancy with this child was full term and uncomplicated. Medical history, as reported by the mother, is essentially negative. There is no family history of hearing disorders.
“Mrs. Williams could give no reason for her son’s loss of hearing, other than to state that he has always had trouble hearing and talking. He communicates with his family primarily by primitive gestures, supplemented by vocalizations and some word approximations.
“Mr. Williams reportedly has had no school experience. His older brother reported that an uncle in Hattiesburg had wanted to get speech and hearing help for the boy years ago, but that his mother had resisted. Mrs. Williams said James’ hearing was tested in Tuscaloosa, Alabama and that a hearing aid was recommended, but she had never gotten one for him because of Welfare complexities. Mrs. Williams also reported that James had undergone testing that, from her description, may have been an intelligence test, at about age 13 in Birmingham, Ala., but she had no recollection of the results or recommendations.
Examination
“Mr. Williams entered the testing situation willingly and was cooperative throughout. His relation to common objects and environmental orientation appeared normal.
“Language testing indicated severe deficits. He did not respond to speech appropriately, could not identify most named objects, and could not follow simple one-part instructions, unless they were accompanied by gestures. He demonstrated no understanding of deaf sign language. He named some common objects verbally, using word approximations, and used a few verbs. When asked to describe story-action pictures he employed primarily single words and unintelligible jargon, interspersed with real-word approximations. He employed a voice of normal quality and loudness but lacking in the pitch inflections of connected speech.
“Mr. Williams verbally counted objects only up to 7 and demonstrated mental addition and subtraction abilities up to seven; i. e., 5 take-away 3 = 2, 5 plus 2 = 7. He did not understand the examiner’s verbal request for certain numbers of objects (“Give me 3, Give me 5”), but did understand when the examiner held up the number of fingers to indicate how many were wanted. Mr. Williams matched colors correctly but did not understand or use color names.
“Reading and writing skills are nonfunctional, except to print his name.
“A short time was spent in trial teaching of sign language vocabulary. In less than ten minutes he had learned to understand and use five noun words and three color words in sign language, indicating good potential for development of communication through this modality.
“A clinical examination of the intraoral speech mechanism including the tongue, lips, hard palate, velum and dentition revealed no structural or functional abnormalities which would be likely to interfere with speech or voice production.
“An audiometric testing of hearing sensitivity in our Audiology Clinic revealed a severe, bilateral sensorineural hearing loss.
“In response to the examiner’s request that he draw a man, the patient produced a figure with skill and conceptualization at the eight year, six month level of the Goodenough norms.
Impressions
“Mr. Williams displayed severe communication deficits in all modalities, including speech, oral language comprehension and expression, sign language, reading and writing. He communicates primarily with primitive gestures, unintelligible jargon and a few word approximations. Lipreading is essentially nonfunctional.
“He demonstrated potential for development of some speech if provided with hearing aid amplification and for development of sign language communication if intensive tutoring is made available.
Recommendations
“1. Psychological testing to determine intellectual potential so that realistic goals can be set for Mr. Williams.
“2. Speechk English language, and sign language training at our facility, in conjunction with hearing aid fitting and auditory training.
“3. It is recommended that members of his family also learn sign language, possibly in classes offered at the Catholic Deaf Center.”

An August 4, 1975 report of the Audiology Clinic was also furnished in which this audiological evaluation was made.

“Audiological Evaluation
“James was seen at the Audiology Clinic, LSU Medical Center on July 31, 1975 for a hearing evaluation. The evaluation had been ordered by criminal authorities regarding his arrest and prosecution on criminal charges.
“Results of pure tone air and bone conduction testing indicate that James has a severe hearing loss in the right ear and a severe to profound hearing loss in the left ear. The loss appears to be primarily sensorineural in nature. Speech awareness thresholds of 60dB HL for the right ear and 75dB HL for the left ear correlated well with the pure tone thresholds.
“Impedance evaluation revealed a normally functioning right middle ear system and a slightly stiff left middle ear system.
“Stapedial reflexes were elevated when stimulating the right ear and were even more elevated or absent when stimulating the left ear. These results are very likely indicative of recruitment rather than true sensitivity levels. Further testing was impossible due to the patient’s inability to understand complex verbal instructions. Otoscopic examination by Dr. Fourier, M.D. revealed some patches of plaque on the left ear drum, but it was felt that it not medically significant in relation to the total severity of the problem.
“In summary, James Williams has a severe hearing impairment. His loss appears to have been present very early in life and is primarily responsible for his inability to use normal verbal communication himself or understand normal verbal communication directed to him by others unless the communication situation is very basic or familiar.
“Based on the above results, the following recommendations were made:
1.That he be fitted with a high gain hearing aid in the right ear as quickly as possible. Private purchase does not appear feasible and it will probably be necessary for some family assistance program to handle this matter.
2. That he be seen for a hearing aid evaluation at this clinic as soon as a hearing aid is procured.
3. That he be enrolled in an aural rehabilitation/speech therapy program at this clinic.
“It should be noted that simply supplying a hearing aid will not remedy James’ communication problems. The many years of inadequate or absent treatment for his hearing loss have produced severe delays in speech and language development and cannot be quickly reversed or dismissed through simple hearing aid use. Therefore, the recommendation for aural rehabilitation therapy is a major requirement in the management of this case.”

Orders were issued thereafter requiring defendant to be examined on a continuing basis and that he be fitted with a hearing aid. This progress report was sent to the trial judge on May 10, 1976:

“Progress Report
“Diagnosis: Communication deficit secondary to hearing loss.
Additional Information: Total communication therapy was initiated in February, 1976, for two one-hour sessions weekly.
Objectives: Development of communicative abilities adequate for participation in trial proceedings.
Procedures: Total communication therapy, employing oral-aural stimulation via an auditory trainer and American Sign Language was used. Procedures were aimed at enhancing James’ ability to understand spoken language, to speak more intelligbly, and at the same time, teaching him to understand and use sign language.
Progress and Present Status: In the 6 sessions he attended, James learned to speak, sign and understand signs for 12 nouns, 13 adjectives, 3 pronouns, and 6 verbs. In addition, he has learned to count to 10 in sign language and to enunciate the numbers more clearly. Overall intelligibility remains low. Intelligibility of target responses is about 50%. James is able to follow simple instructions involving target responses with 80% accuracy-
Comments: James learned the concept of sign language quickly. He was cooperative and was progressing rapidly in therapy. However, following at attempted escape from Charity Hospital in late February, 1976, James was returned to Parish Prison. Since that time there have been no arrangements made by the sheriff to have James returned to Charity for continuation of therapy, despite our repeated contacts with Mr. Weil, the medical officer at Parish Prison.
“At this time, James’ communicative abilities remain severely deficient. Recommendations: James should be returned to Charity Hospital for resumption of therapy.”

Apparently, because of his attempted escape, Williams was no longer permitted to attend the therapy sessions on a regular basis. Furthermore, according to the experts, he was not benefitting significantly from the therapy program. In their opinion his condition required an intense full-time aural rehabilitation program to produce any significant improvement in his communicative abilities. That service could not be provided in Louisiana. An effort to arrange for Williams to participate in such a program with the Crossroads Rehabilitation Center in Indianapolis, Indiana, was unsuccessful because that facility could not provide the security required for a person under a felony indictment involving a violent crime.

Under the circumstances the LSU Department of Speech and Pathology was of the opinion on September 30,1977 that further therapy on a limited basis would be useless because that department could not supply the intense program considered necessary for Williams. Under the circumstances, the Department was of the opinion that Williams’ communicative disability would continue indefinitely and he would be incapable of standing trial in the future as he was when he was charged.

Then, on December 12, 1977, Williams through counsel, alleged in a motion that he was incarcerated in the Orleans Parish Prison, that he had been found incompetent to stand trial, medical testimony indicated there was no likelihood of his condition improving in the foreseeable future, and he was deaf and dumb, unable to read or write and did not know, and apparently could not be taught, any form of meaningful communication. For these reasons, it was alleged, it was impossible for Williams to assist his attorney in his defense. Therefore, the motion concluded, the State was obligated to dismiss the indictment against Williams or move to civilly commit him, or show cause to the contrary.

In its answer to the motion the State asserts that Williams, a deaf mute, would be a danger to himself and others if he were released. Further, the answer alleges that the State knew of no statutory or codal authority which provides for the civil commitment of a defendant suffering from such a physical defect and the State knew of no institution capable of improving defendant’s communicative abilities and providing necessary security while doing so.

After a hearing on December 12,1977 the trial judge denied the motion. Defense counsel applied for certiorari and the writ was granted. 355 So.2d 941 (La.).

It is the State’s position that the record does not indicate that psychological tests have been administered to determine whether Williams suffers from mental disease or mental retardation. In addition, it is the State’s belief that Williams could respond to proper intensive therapy to develop his communicative ability. At the same time, the State concedes that such treatment is not presently available in Louisiana. Therefore, the State contends that under the peculiar circumstances of this case the motion to release or civilly commit is premature at this time. Instead, it is contended the case should be remanded to the district court for further inquiry into Williams’ mental condition as distinguished from his physical condition.

There are provisions in our law for the judicial commitment of persons who are mentally ill or gravely disabled. La.Rev. Stat. 28:54. The alternatives available are to either release this defendant, who is charged with a violent crime, or remand to permit inquiry into his mental illness for which treatment is available. Faced with the proposition that no one is beyond the reach of the law, the choice must be resolved, at least at this time, in favor of the . State’s request for additional time to have Williams tested psychologically. Ultimately, even if he is found to be mentally ill, he cannot be held indefinitely on that account if his condition is incurable. If he is mentally ill and responds to treatment, however, and if his communicative ability can be improved to the point where he can assist his counsel in his defense, he can be tried; provided these restorative procedures can be accomplished without delay. Otherwise the State must release Williams. Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); State ex rel. Lockhart v. Armistead, 351 So.2d 496 (La. 1977); People v. Lang, 325 N.E.2d 305 (Ill.App.1975); People v. Myers, 263 N.E.2d 113 (Ill.1970); “The Strange Case of Donald Lang”, ABA Journal Vol. 64, p. 1178 (Aug. 1978).

For the reasons assigned, the case is remanded to the trial court to be proceeded with in accordance with the reasons assigned.


source: Caselaw Access Project

author: SANDERS, Chief Justice. CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Herman WILSON.
    No. 61774.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      William J. O’Hara, Supervising Atty., New Orleans, William Cunningham, Student Practitioner, 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.
   SANDERS, Chief Justice.

Defendant Herman Wilson was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. On February 5, 1976, he was tried before a twelve person jury which found him guilty as charged. Thereafter, defendant was sentenced as a fourth offender to imprisonment for 110 years.

In his single assignment of error, the defendant alleges that the trial judge erred in overruling his motion to suppress the tangible evidence.

At about 1:30 a. m. on July 14, 1975, a hitchhiker on Canal Street was picked up by two men who robbed him at gunpoint of a watch and ring, then released him. Shortly after the crime, Larry Carter was arrested and identified by the victim. Protesting his innocence, Carter claimed that he had been at Patricia Watson’s residence at the time of the crime. Officer Larry Lombas and two other police officers proceeded to Patricia Watson’s house to check on Carter’s alibi. Ms. Watson answered their knock, and when told of Carter’s arrest, she reportedly exclaimed that “she knew they would get in trouble.” Asked to elaborate, she stated that Larry Carter and defendant Wilson (her boyfriend, with whom she resided) had been at her residence until about 11:00 p. m. on July 14, had left together, had returned at about 2:00 a. m. on July 15, but had left again. While Ms. Watson was talking to the officers, Wilson telephoned and told her that he would be home shortly. She informed the police and invited them to wait. At 6:40 a. m., defendant returned home, saw the police as he entered the front door, and ran. The officers pursued and arrested him, and in a search incident to that arrest, seized the stolen watch and ring which defendant was wearing.

The defendant offered a different version of the facts. Ms. Watson stated that five police officers came to her home, entered without asking her permission, and questioned her about both Larry Carter and defendant Wilson. When defendant called, she said, one of the officers picked up an extension telephone and another presented her with a note instructing her to ask defendant where he was. Ms. Watson also stated that the watch and ring had been seized from the apartment rather than from defendant’s person. The trial court apparently rejected the defense testimony.

Defendant argues in brief that the officers’ entry into Ms. Watson’s residence was illegal and that his subsequent arrest was tainted by that illegality. He complains of the method by which the police obtained their information, not of the ultimate sufficiency of their grounds to arrest. The State maintains Ms. Watson consented to their entry into the residence and cooperated in their action.

Under accepted constitutional principles, a valid consent to search allows police to dispense with a search warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Mitchell, 360 So.2d 189 (La.1978); State v. Abram, 353 So.2d 1019 (La.1977). Therefore, if Patricia Watson invited the police into her residence, voluntarily answered their questions, permitted them to eavesdrop on her conversation with defendant, and consented for them to remain inside waiting for defendant, the information leading to defendant’s arrest was legally secured.

Whether consent is voluntary is a question of fact. The determination of the trial court, which has an opportunity to hear and observe the witnesses, is entitled to great weight on appeal. See, State v. Dunbar, 356 So.2d 956 (La.1978); State v. Temple, 343 So.2d 1024 (La.1977). Here, the testimony of Officer Larry Lombas provided ample basis for a conclusion that Ms. Watson voluntarily gave her consent.

Without a formal assignment of error, the defendant makes a specific complaint regarding the propriety of the sentence. We do not reach this complaint because we have noted a patent error in the sentence which requires correction. See LSA-C. Cr.P. Art. 920(2).

A defendant sentenced as a fourth offender under the provisions of LSA-R.S. 15:529.1 A(3) is subject to imprisonment “for a determinate term not less than the longest term prescribed for a first conviction and not more than his natural life and in no case less than twenty years.” In State v. Delaney, 359 So.2d 976 (La.1978), we concluded that a sentence of imprisonment for ninety-nine years, which could be imposed upon a first conviction of armed robbery, did not violate the Habitual Offender Law’s prohibition that the sentence be “not more than his natural life.” Consequently, a sentence of 99-years’ imprisonment, the longest term prescribed for armed robbery by LSA-R.S. 14:64, is the appropriate sentence here. State v. Delaney, supra. That sentence is without benefit of parole, probation, or suspension of sentence.

Defendant’s sentence of 110-years’ imprisonment is illegal and must be set aside.

Accordingly, defendant’s conviction is affirmed, but the sentence is vacated and the case is remanded for resentencing in accordance with law.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs for reasons by CA-LOGERO, J.

CALOGERO, Justice,

concurring.

I agree that the defendant’s conviction should be affirmed. However, the majority’s resolution of the argued assignment of error prompts me simply to concur in this opinion.

Under the mandate in R.S. 15:529.1 A(3), this defendant must be sentenced to a term “not less than the longest term prescribed for a first conviction” (in this case ninety-nine years) but for a term “not more than natural life.” The majority relies on State v. Delaney, 359 So.2d 976 (La.1978) which in approving defendant’s sentence held that a sentence of imprisonment for ninety-nine years did not violate the prohibition that a fourth offender must be sentenced for “not more than his natural life.” However, in State v. Alexander, 362 So.2d 775 (La.1978), this Court held that a sentence of one hundred years at hard labor exceeded the life expectancy of the defendant and therefore could not be imposed on a fourth offender. It seems that if a sentence of one hundred years exceeds the life expectancy of a defendant, then a sentence of ninety-nine years must do so also. To resolve the apparent conflict in the law, this Court should re-examine the holding in Alexander that a one hundred year sentence exceeds the natural life of the defendant, or the holding in Delaney that a defendant convicted for armed robbery may be sentenced under the habitual offender statute to ninety-nine years. We should either reverse Alexander or find that the sentencing provisions of habitual offender statute do not apply to multiple convictions for armed robbery. We cannot logically reconcile the two cases.


author: PER CURIAM.

text:
    STATE of Louisiana v. Eddie Ray FORD.
    No. 61780.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Frank E. Brown, Jr., Piper & Brown, Shreveport, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Eddie Ray Ford was indicted by the grand jury in two separate counts for the crimes of second degree murder, La. R.S. 14:30.1, and armed robbery, La. R.S. 14:64. After trial by jury, he was found guilty as charged on both counts, sentenced to life imprisonment on the second degree murder conviction, and sixty years at hard labor without benefit of parole, probation or suspension of sentence on the armed robbery conviction, the sentences to run consecutively.

On appeal, defendant relies upon nine assignments of error for reversal of his convictions and sentences.

We have reviewed the record and find no merit in defendant’s assignments of error. Accordingly, we affirm his convictions and sentences.


author: MARCUS, Justice.

text:
    Louis G. VILLAUME v. Christine R. VILLAUME. Christine R. MAHAR v. Louis G. VILLAUME.
    No. 61801.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Stephen A. Berniard, Jr., Raggio, Farrar, Cappel & Chozen, Lake Charles, for Christine R. Mahar.
    Michael K. Dees, McHale, Bufkin & Dees, Lake Charles, for Louis G. Villaume.
   MARCUS, Justice.

Louis G. Villaume filed suit for the permanent custody of the two minor children of his former marriage to Christine R. Ma-har. Thereafter, Mrs. Mahar filed a separate suit seeking recognition of a prior Missouri judgment awarding her permanent custody of the children. The two cases were consolidated for trial. After hearing, the matter was taken under advisement. On August 2, 1977, a single judgment was signed awarding permanent custody of the minor children to Mr. Villaume and dismissing Mrs. Mahar’s suit with prejudice. A timely application for new trial was denied on August 15, 1977.

Subsequent to the denial of a new trial, an error was discovered in the' original judgment. The judgment provided, contrary to the written reasons assigned by the trial judge, that Mrs. Mahar was to be accorded visitation rights on the last full weekend of each and every month. Consequently, on a joint motion of both parties, allegedly filed pursuant to La.Code Civ.P. art. 1951, to amend the judgment “to provide the proper phraseology in the judgment as is set out in the Court’s written reasons,” the trial judge signed a new judgment on August 26,1977, prior to the lapse of the delay period for taking an appeal. This new judgment contained the exact provisions of the previous judgment except as amended to award Mrs. Mahar visitation rights on the last full weekend of every other month plus the stipulation that the “provisions of the amended judgment shall control and supersede any provision contained in the original judgment.” Notice of the new judgment was mailed to the parties on August 30, pursuant to La.Code Civ.P. art. 1913.

On October 11, 1977, the trial judge denied Mrs. Mahar’s request for an appeal for the reason that the delay for taking an appeal had expired. Mrs. Mahar’s application to the court of appeal under its supervisory jurisdiction for a writ to review the ruling of the trial judge was denied. Mrs. Mahar then applied to this court for a writ under our supervisory jurisdiction. A writ was granted in which we ordered the trial court to grant the appeal. Mr. Villaume did not apply for rehearing. Pursuant to said order, the trial judge granted an appeal to Mrs. Mahar.

On Mr. Villaume’s motion, the court of appeal dismissed Mrs. Mahar’s appeal on the ground that it was not timely taken. On Mrs. Mahar’s application to this court, we granted a writ to review the correctness of this decision.

The sole issue presented for our review is whether Mrs. Mahar’s appeal was taken timely. This in turn depends on when the delay period for taking the appeal commenced to run.

The applicable law provides that an appeal from a judgment awarding custody of a child can be taken only within thirty days from the expiration of the delay for applying for a new trial if no application has been filed timely. La.Code Civ.P. arts. 3942, 3943 and 2087(1). The delay for applying for a new trial is seven days exclusive of legal holidays. This delay commences to run on the day after the judgment is signed; except that when notice is required, it commences to run on the day after such notice has been mailed. La.Code Civ.P. art. 1974. Finally, La.Code Civ.P. art. 5059 provides that in computing a period of time allowed or prescribed by law, the last day of the period is included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.

Applying this law to the facts herein, it is clear that Mrs. Mahar’s appeal was untimely taken unless we conclude that the delay for taking the appeal commenced to run anew from the date of the amended judgment. In that event, since notice of the amended judgment was mailed on August 30, the delay for applying for a new trial would have begun to run on August 31. La.Code Civ.P. art. 1974. Excluding legal holidays (Saturday, September 3; Sunday, September 4; and Monday, September 5— Labor Day), the seven-day delay for a new trial ended on September 9. Hence, the thirty-day delay for taking an appeal would have commenced on September 10 and expired on Sunday, October 9. La.Code Civ.P. arts. 3942, 3943. Since both that day and the next day (October 10 — Columbus Day) were legal holidays, the delay period would have extended through October 11. La. Code Civ.P. art. 5059.

Thus, if we conclude that the delay for taking this appeal commenced to run from the date of the amended judgment, then Mrs. Mahar’s appeal was timely taken.

La.Code Civ.P. art. 1951 provides that a final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: to alter the phraseology of the judgment, but not the substance; or to correct errors of calculation. Thus, the judgment may be amended by the court where the amendment takes nothing from or adds nothing to the original judgment. See Baptiste v. Southall, 157 La. 333, 102 So. 420 (1924); Glen Falls Indemnity Co. v. Manning, 168 So. 787 (La.App.Orl.1936), cited in La.Code Civ.P. art. 1951 Official Revision Comments (b).

The joint motion filed by the parties herein declares that the amendment merely conforms the judgment to the court’s written reasons, and thus is a change in phraseology only. This characterization of the amendment is not binding on this court. In Hebert v. Hebert, 351 So.2d 1199 (La.1977), the court of appeal had held that only the phraseology of the original judgment had been changed because the amendment merely expressed the trial judge’s actual intention as evidenced by his oral remarks at the conclusion of the hearing. In reversing that court, we noted:

[T]he notion that the substance of the judge’s oral remarks should govern instead of the substance of the written judgment could not have been the legislative intent because it would destroy the integrity of written judgments as evidence and public record of the court’s decree.

We believe that this reasoning applies with equal force to the instant case. See also State ex rel. Vignes v. Judge Civil District Court, 43 La.Ann. 1169, 10 So. 294 (1891).

The amendment at issue directly affected the rights of the parties. According to the original judgment, Mrs. Mahar was to have visitation rights on the last weekend of each month; whereas, the amended judgment granted her visitation rights on the last weekend of every other month. Therefore, the amendment of the original judgment clearly constituted a substantive alteration of the original judgment in contravention of La.Code Civ.P. art. 1951. As a general rule, a final judgment is not subject to substantive amendment by the trial judge on his motion or motion of any party. In such an event, the proper recourse is a timely application for new trial or a timely appeal. Hebert v. Hebert, supra.

In the instant case, there was no necessity for either of these alternatives because both parties consented to the substantive amendment to the original judgment. Pursuant thereto, an amended judgment was signed prior to the lapse of the delay provided for taking an appeal. Moreover, the amended judgment expressly stipulated that “the provisions of the amended judgment shall control and supersede any provision contained in the original judgment.” Accordingly, the amended judgment accomplished the same result as would have been obtained had the substantive change been effected at a new trial or on appeal except that it had the further effect of creating a new final judgment from which the delay period for taking an appeal commenced to run anew.

Mr. Villaume cites Miciotto v. Cox, 335 So.2d 798 (La.App. 2d Cir. 1976) as authority for the contrary proposition. This case is distinguishable on its facts in that the trial judge in that case amended the judgment on his own motion pursuant to La.Code Civ.P. art. 1951. In the instant case, the original judgment was substantively amended with the consent of the parties, thereby creating a new final judgment from which the delay for taking an appeal commenced to run anew.

In sum, since the appeal delay began to run from the date of the new judgment, Mrs. Mahar’s appeal was timely taken.

DECREE

For the reasons assigned, the judgment of the court of appeal dismissing Christine R. Mahar’s appeal is reversed and the case is remanded to the court of appeal for further proceedings in accordance with the views herein expressed. Costs of the proceedings in this court are assessed against Louis G. Villaume; the assessment of the remaining costs are to await the final outcome of the litigation.

      . The parties were previously divorced in California where they resided at the time. Mr. Villaume has moved to Lake Charles, Louisiana. Christine R. Villaume has remarried Paul Mahar. Their marriage took place in Missouri where they resided at the time of trial.

      . The joint motion was not dated. While the record reflects that it was not filed with the clerk of court until September 16, 1977, it is obvious that it was signed and presented to the trial judge prior to the signing of the amended judgment on August 26, 1977. This conclusion is confirmed in the opposition filed by Mr. Villaume’s counsel to Mrs. Mahar’s application for writs to this court in which it is stated that “[sjubsequent to the denial of the new trial, an error in the wording of the judgment signed on August 2, 1977 was discovered and on ‘Joint Motion’ of counsel for Christine R. Mahar and Louis G. Villaume, the judgment was amended.”

      . 355 So.2d 1084 (La.App. 3d Cir. 1978).

      . 356 So.2d 1387 (La.1978).

      . 355 So.2d 1084 (La.App. 3d Cir. 1978).

      . 356 So.2d 1387 (La.1978).


text:
    Rene CHAPOTEL v. BAILEY LINCOLN-MERCURY, INC., et al.
    No. 61837.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Bruce G. Reed, Reed, Reed & D’Antonio, Metairie, for defendants-respondents.
    John A. E. Davidson, Anthony S. Taormi-na, Taormina & Davidson, Metairie, for plaintiff-applicant.
   MARCUS, Justice.

This is an action brought under Title IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. §§ 1981-1991. Rene Chapotel purchased a 1972 Lincoln Continental automobile with an indicated mileage on the odometer of approximately 33,-000 miles from Bailey Lincoln-Mercury, Inc., who had, in turn, acquired the automobile from Dixieland Auto Sales, Inc., with a similar odometer reading. After purchase of the automobile, Chapotel became suspicious of scratches on the odometer and subsequent investigation revealed that Dixieland had come into possession of this automobile with the odometer originally registering 62,358 miles. George Vulevich, Jr., president of Dixieland, admitted that the odometer had been altered while the vehicle was in the possession of Dixieland.

Chapotel instituted this suit against Bailey Lincoln-Mercury (not now before this court), Dixieland, and Vulevich. In his petition, plaintiff alleged that the odometer had been turned back by Vulevich while the vehicle was in possession of Dixieland in violation of 15 U.S.C. § 1984. Plaintiff also alleged that defendants violated 15 U.S.C. § 1988 which imposes liability on a transferor who conveys ownership of a motor vehicle where the odometer is known to the transferor to be different from the number of miles the vehicle has actually traveled. Plaintiff sought three times the amount of actual damages ($4,346.55) from each defendant, together with costs of the action and reasonable attorney fees as authorized by 15 U.S.C. § 1989. Defendant Bailey Lincoln-Mercury filed an answer and third party demand against Dixieland. Defendants Dixieland and Vulevich filed an answer generally denying the allegations contained in plaintiff’s petition but in further answering admitted that the odometer was moved back while the vehicle was in possession of Dixieland as alleged in plaintiff’s petition. Dixieland further admitted that Dixieland, through its president, Vule-vich, had offered to settle with plaintiff for the sum of $1,500 which offer was subsequently withdrawn by defendant corporation after plaintiff had indicated that the offer was unacceptable.

Plaintiff subsequently filed a motion for summary judgment against Dixieland and Vulevich supported by affidavits establishing liability under the federal statute. Defendants filed an opposing affidavit again admitting that the odometer was altered while the vehicle was in possession of Dixieland but denying that the odometer was altered personally by Vulevich. The trial judge rendered a summary judgment in favor of plaintiff and against defendants Dixieland and Vulevich, in solido, awarding damages in the sum of $1,500 with interest from judicial demand and all costs. No attorney fees were allowed. The trial judge noted in his reasons for judgment that he considered the “intent of the statute was not to allow multiple recovery against a corporate defendant and its agent, who are, rather, liable in solido for the single penalty.”

. The court of appeal affirmed finding that solidary liability was permitted under the federal statute and that plaintiff was not entitled to attorney fees. On application of plaintiff, we granted a writ to review the correctness of this decision.

Plaintiff contends that the courts below erred in not imposing separate and individual penalties in the amount of $1,500 (or a total of $3,000) against Dixieland and Vulevich. Plaintiff also contends that the courts below erred in refusing to award reasonable attorney fees. We first address the issue as to whether imposition of solida-ry liability was proper under the federal statute.

The pleadings and affidavits in connection with plaintiff’s motion for summary judgment clearly show a violation of the federal odometer statute while the automobile was in possession of Dixieland. This fact is undisputed. Moreover, we consider that the actions of defendants in altering the odometer and transferring the ownership of the vehicle were part of the same transaction resulting in the violation of the federal statute in question. We also find that solidary liability was correctly imposed. Plaintiff’s theory would have this court impose separate liability, without benefit of contribution or indemnification, upon Dixieland and Vulevich in spite of the fact that a corporation can only act by and through its agents and employees. If plaintiff’s argument were accepted, suits against car dealers who chose to do business in a corporate form would, if successful, inevitably result in multiple violations of the statute and multiple recoveries: one against the corporation and the others against the corporate employees or agents personally involved in the violation. Hence, to grant plaintiff separate and individual recoveries in the instant case would effectively abolish the minimum statutory recovery of $1,500 established by 15 U.S.C. § 1989. Because section 1989 authorizes the recovery of actual damages, and not penalties, we do not believe that Congress intended to impose multiple recoveries for this violation of the statute.

Next, we address the issue as to whether plaintiff is entitled to recover attorney fees under the federal statute.

In holding that plaintiff was not entitled to attorney fees, the court of appeal noted that section 1989 allowed an award of attorney fees “in the case of any successful action to enforce the foregoing liability.” Therefore, since plaintiff obtained a judgment only for the amount of defendants’ original settlement offer, plaintiff’s action had not been “successful” within the meaning of the statute because he gained nothing by it.

First, we reject the notion that this was an “unsuccessful and fruitless” action as stated by the court of appeal. The plaintiff, in his original petition, sought much more than the statutory minimum he was finally awarded. In his motion for summary judgment, plaintiff sought that liability be imposed separately against defendants Dixieland and Vulevich rather than solidar-ily. If successful, this would have resulted in a double recovery ($3,000) of the minimum figure ($1,500). The issues advanced in this litigation raised serious questions of law and of the proper interpretation of a relatively new federal statute. It should also be noted that defendants’ settlement offer was made outside of court and was eventually withdrawn. Thus, although plaintiff did not recover the total amount of damages sought, it would be improper to characterize this action as unsuccessful.

The policy of the federal odometer statute is “to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers.” 15 U.S.C. § 1981. In furtherance of this policy, section 1989 provides that any person who violates the requirement imposed under this title (15 U.S.C. §§ 1981 et seq.) shall be liable in an amount set forth therein and in the case of any successful action to enforce said liability, the costs of the action together with reasonable attorney fees. Accordingly, we consider the award of reasonable attorney fees to be mandatory in the case of any successful action to enforce liability under the statute. In the instant case, we find that plaintiff was successful in this action even though he only recovers an award equal to an amount previously offered in an informal and withdrawn settlement offer. Therefore, the court of appeal erred in denying an award of reasonable attorney fees to plaintiff.

The pleadings and affidavits filed in the record adequately establish the nature and amount of services rendered by plaintiff’s counsel. We find that an award of five hundred dollars as attorney fees would be reasonable under the circumstances here presented.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the district court is amended to include five hundred dollars as attorney fees. As amended, the judgment of the court of appeal is affirmed.

      . 15 U.S.C. § 1984 provides:
      No person shall disconnect, reset, or alter or cause to be disconnected, reset, or altered, the odometer of any motor vehicle with intent to change the number of miles indicated thereon.

      . 15 U.S.C. § 1988 provides:
      (a)Not later than 90 days after the date of enactment of this Act [enacted Oct. 20, 1972], the Secretary shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:
      (1) Disclosure of the cumulative mileage registered on the odometer.
      (2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled. Such rules shall prescribe the manner in which information shall be disclosed under this section and in which such information shall be retained.
      (b) No transferor shall violate any rule prescribed under this section or give a false statement to a transferee in making any disclosure required by such rule.
      (c) No transferee who, for purposes of resale, acquires ownership of a motor vehicle shall accept any written disclosure required by any rule prescribed under this section if such disclosure is incomplete.
      The rules referred to in section 1988 are set forth in 49 C.F.R. § 580.1, et seq.

      . 15 U.S.C. § 1989 provides in pertinent part:
      (a) Any person who, with intent to defraud, violates any requirement imposed under this title [15 USCS §§ 1981 et seq.] shall be liable in an amount equal to the sum of—
      (1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and
      (2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.

      . 356 So.2d 615 (La.App. 4th Cir. 1978).

      . 356 So.2d 1007 (La. 1978).

      . We do not pass upon the question of whether multiple recoveries can be obtained against automobile transferors when there is a chain of successive transfers violative of section 1988. The issue is not before us. The federal jurisprudence addressing this issue is unsettled. Some cases hold that, in this situation, each vendor of a motor vehicle can be separately and individually liable to a plaintiff without benefit of contribution or indemnification. See Mataya v. Behm Motors, Inc., 409 F.Supp. 65 (E.D.Wis.1976); Steir v. Park Pontiac, Inc., 391 F.Supp. 397 (S.D.W.Va.1975). Contrary to these decisions is Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381 (D.Neb.1977), wherein the court held that payment to the plaintiff by one co-defendant transferor would lessen liability of the other co-defendants.

      . We note that in Steir v. Park Pontiac, Inc., 391 F.Supp. 397 (S.D.W.Va.1975), the court stated that, since a corporation acts by and through agents, liability would not lie exclusively against a corporate seller, but also against the corporation’s agent or agents who may be found guilty of violating section 1988. However, the court did not address the issue as to whether liability imposed would be solidary or separate and individual, without benefit of contribution or indemnification. Contrary to Steir, other cases have held that a corporate agent is not a transferor within the meaning of section 1988 and thus not liable with the corporate employer for violation of this section. See Romans v. Swets Motors, Inc., 428 F.Supp. 106 (E.D.Wis.1977); Coulbourne v. Rollins Auto Leasing Corp., 392 F.Supp. 1198 (D.Del.1975).

      . In Kirkland v. Cooper, 438 F.Supp. 808 (D.S. C.1977), the court stated that the allowance of attorney fees was envisioned by Congress to encourage attorneys to aid in the enforcement of this statute, despite the fact that damages might not be of a large amount. See also Gimarc v. Neal, 417 F.Supp. 129 (D.S.C.1976). In Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381 (D.Nev.1977), the trial court awarded attorney fees even though plaintiff had accepted from a co-defendant a sum in partial settlement in excess of the liability eventually established at trial.


text:
    STATE of Louisiana v. Isaac SMITH and Howard Higginbotham.
    No. 61852.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Michael S. Ingram, Monroe, for Isaac Glen Smith.
    Billye L. Adams, Monroe, for Howard Lee Higginbotham.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendants appeal from their convictions, each on several counts (Smith, 4 counts; Higginbotham, 3 counts) of aggravated rape, La.R.S. 14:42, of a fellow inmate in the parish jail over a period of five days. They were sentenced to life imprisonment at hard labor.

Upon their appeal, the defendants each rely upon two assignments of error. We have examined them, and we find them to be without reversible merit.

Accordingly, we affirm the convictions and sentences.

AFFIRMED.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Frederick JONES.
    No. 61859.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged with armed robbery (R.S. 14:64) by bill of information and convicted of that crime after a jury trial. Before sentencing, the state filed an habitual offender bill pursuant to R.S. 15:529.1 and, upon proof in conformity with that statutory provision, defendant was adjudged an habitual offender and sentenced to one hundred ninety-eight years at hard labor. Upon this appeal of his conviction and sentence defendant relies on three assignments of error for a reversal of his conviction and sentence. Finding merit in one of the assignments, we reverse the conviction and sentence.

Assignment No. 7 complains that the trial court erred in refusing to require testimony of a purported co-perpetrator called by the defendant who had entered a guilty plea and been severed after jury selection in the joint trial had concluded. The witness had not invoked the constitutional privilege against self-incrimination.

The state presented the evidence it had marshalled against defendant Jones, then rested. After the jury was retired from the courtroom, defendant Jones called Edward DeGreat as his first witness. DeGreat’s counsel notified the court that DeGreat had advised counsel that he refused to testify in the case. The witness was sworn and verified under oath that he would refuse to testify. The prosecutor who also wanted to question DeGreat joined in defense counsel’s request and opined that DeGreat should be directed by the court to testify, in view of the fact that he had already entered a plea of guilty. The court sought to have DeGreat’s counsel state the grounds upon which defendant could refuse to testify and DeGreat’s attorney cited the case of Widger (Widger v. United States, 244 F.2d 103 [5th Cir. 1957]), with the facts of which the court was apparently somewhat familiar. In discussing the Widger case, De-Great’s counsel noted that the federal Fifth Circuit had ruled that Widger did not have to testify. Jones’ counsel sought to learn the basis for that holding and DeGreat’s counsel announced that the basis was “self preservation.” Jones’ counsel protested that since DeGreat had already entered a plea, his testimony would in no way harm him, emphasizing that DeGreat “ . may be able to exonerate the defendant before the bar.”

In expressing misgivings about the safety of the potential witness who, on the basis of his own guilty plea that morning, would be going to the penitentiary, the court stated: “I can’t put his life in jeopardy by getting him to testify for one side or the other. I’m not going to be put in that position. I’m going to uphold his right to refuse to answer.”

Subsequent discussion between the court and the prosecutor wherein the prosecutor communicated a willingness to grant immunity in exchange for DeGreat’s testimony again established that the court’s concern in “uphold[ing] his right to refuse to answer” was for DeGreat’s safety in the penitentiary. The court pointedly questioned the prosecutor: “Are you going to send a man up there to stay with him in the Penitentiary to protect him? If you guarantee me that, I’ll make him testify.”

Because of the court’s ruling, defendant Jones was wholly deprived of his constitutional right to compel the attendance of a witness. La.Const. art. I, § 16 (1974); U.S.Const., amend. VI. He was likewise deprived in some measure of his constitutional right to present a defense. La.Const. art. I, § 16 (1974); U.S.Const. amend. VI, as construed in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). We must determine whether the witness’ asserted interest in self-preservation overrides Jones’ constitutional rights.

In refusing to require DeGreat to appear as a witness on Jones’ behalf, the court clearly relied upon Widger, supra, determining that the threat to DeGreat’s safety which would be engendered by his testimony outweighed the need for his testimony. Widger was an appeal from a contempt conviction which resulted from Widger’s refusal to answer questions on the ground that to do so would subject him to imminent danger to grave physical harm; in refusing, Widger clearly established that he was not relying on any constitutional right he possessed. The Fifth Circuit noted that a court would not lightly require testimony if it believed that death or grave physical harm would ensue therefrom, and held that the federal district court had no right to reject without a hearing Widger’s uncontra-dicted statements that harm would come to him. But the Fifth Circuit expressly stated: “We do not hold that appellant was justified in his refusal to answer the questions propounded to him by the Court and by the prosecuting attorney in its presence.” Widger v. United States, supra, at 107.

In Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961) the Supreme Court had before it for a review a contempt conviction predicated on a witness’ refusal to testify before the Grand Jury. The stated basis for refusal was the witness’ fear for his own safety and that of his family. In a footnote the United States Supreme Court stated:

“Neither before the Court of Appeals nor here was fear for himself or his family urged by Piemonte as a valid excuse from testifying. Nor would this be a legal excuse. Every citizen of course owes to his society the duty of giving testimony to aid in the enforcement of the law. See Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819, Lord Chancellor Hardwicke’s pithy phrase cannot be too often recalled: ‘[T]he public has a right to every man’s evidence.’ 12 Hansard’s Debates 693; 8 Wigmore, Evidence (3d ed.), p. 64, § 2192.
If two persons witness an offense — one being an innocent bystander and the other an accomplice who is thereafter imprisoned for his participation — the latter has no more right to keep silent than the former. The Government of course has an obligation to protect its citizens from harm. But fear of reprisal offers an immunized prisoner no more dispensation from testifying than it does any innocent bystander without a record.”

Called upon to decide whether De-Great’s claim of fear for his personal safety outweighs Jones’ constitutional rights to compel the attendance of witnesses and to present a defense, we have no difficulty in determining that a witness’ fear of reprisal does not override an accused’s paramount right to present the evidence within the control of the witness. The federal and state constitutions guarantee to an accused the rights to compel the attendance of witnesses and to present a defense. In construing the scope of the federal constitutional right to compulsory process the United States Supreme Court stated in Wash ington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967):

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, Just as an accused has the right to confront the prosecution’s witnesses . he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

The Washington court held that a state law rendering co-indictees incompetent as witnesses for a defendant on trial denied the right to have compulsory process, but emphasized in a footnote that nothing in its opinion was to be construed as disapproving testimonial privileges, such as that against self-incrimination. As noted earlier in this opinion, the witness had not invoked the privilege against self-incrimination. Therefore this case presents no issue of the right to assert the privilege nor any question of the extent to which the privilege is available to one who has entered a guilty plea to the offense for which the defendant is being tried and about which he is being called upon to testify. The only matter at issue is the effect a witness’ claim of fear for personal safety is to have in the face of a defendant’s constitutional right to present a defense. We hold that an assertion by a witness called by the defense of fear of reprisal may not be allowed to excuse the witness’ testimony, absent some other excuse, legally valid, for sanctioning his refusal to testify. The trial court in the instant case clearly erred in his ruling, requiring that we reverse defendant’s conviction and sentence.

Decree

For the foregoing reasons the defendant’s conviction and sentence are reversed.

REVERSED.

      . The record on appeal contains seven formal assignments of error, four of which were not briefed and are therefore considered abandoned. State v. Burge, 359 So.2d 616 (La. 1978).


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Alphonse JOHNSON.
    No. 61869.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      R. Judge Eames, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Alphonse Johnson, with armed robbery, a .violation of LSA-R.S. 14:64. In January of 1970, a jury found him guilty. While awaiting sentence, the defendant escaped. In August, the State located him in Michigan, where he was subsequently convicted of two crimes and sentenced to ten to fifteen years’ imprisonment. Correspondence passed between Louisiana and Michigan in which Louisiana repeatedly issued detain-ers, inquired if the defendant would waive extradition and requested the defendant for sentencing. Louisiana, however, instituted no formal proceedings for his return.

In August of 1977, Michigan paroled the defendant. He then waived extradition and returned to Louisiana. In December, 1977, the court sentenced him to thirty-five years’ imprisonment without benefit of probation, parole, or suspension of sentence, but with credit for time served in both Louisiana and Michigan.

The defendant appeals, relying on four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant asserts that the seven-year delay between his conviction and sentence denied him a speedy trial and speedy appeal guaranteed him by the United States and the Louisiana Constitutions, requiring a reversal of his conviction and sentence. This assignment raises a substantial issue.

The issue is whether the Sixth Amendment to the United States Constitution and Article 1, § 16 of the Louisiana Constitution (1974), guaranteeing the defendant a right to a speedy trial, include a right to a speedy appeal and a right to a speedy sentence. We hold that the right to a speedy trial is inapplicable to the appellate and sentencing stages of a criminal prosecution.

This Court has previously held that the constitutional guarantee of a speedy trial does not extend to delays in the appeal. State v. Rhodes, La., 308 So.2d 770 (1975); State v. Lane, La., 302 So.2d 880 (1974). See also State v. Lagerquist, 254 S.C. 501, 176 S.E.2d 141 (1967); State v. Tahash, 277 Minn. 309, 152 N.W.2d 786 (1967).

In Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), the United States Supreme Court “assume[d] ar-guendo” that the Speedy Trial Clause applied to sentencing for purposes of the decision. Considering this assumption, some courts have applied the Speedy Trial Clause to sentencing. See, e. g., Juarez-Casares v. United States, 496 F.2d 190 (5th Cir. 1974). However, neither the United States Supreme Court nor this Court has ever squarely passed upon the question of whether the guarantee of a speedy trial extends to sentencing.

The Sixth Amendment reads as follows:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Article 1, § 16 of the Louisiana Constitution provides:

“Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. .No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.”

When the words are given their fair import in connection with the context, both clauses are properly construed as referring to the adversary hearing that determines guilt or innocence. By its terms, the Sixth Amendment applies to an accused. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). It refers “to a speedy and public trial, by an impartial jury.” The Amendment later assures the right to be confronted by the witnesses and the right to compulsory process to secure the witnesses.

The Louisiana clause refers to a “person charged with a crime” and to a “speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred.” It then adverts to a change of venue, the right against self-incrimination, and to the confrontation of witnesses. None of the language in either clause is relevant to sentencing.

Three considerations underlie the right to a speedy trial: to prevent undue and oppressive incarceration prior to trial; to minimize anxiety and concern accompanying public accusation; and to limit the possibilities that long delay will impair the ability of an accused to defend himself. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). None of these concerns apply to a delay between conviction and sentencing. Brooks v. United States, 423 F.2d 1149 (8th Cir. 1970); State v. Drake, Iowa, 259 N.W.2d 862 (1977); Erbe v. State, 276 Md. 541, 350 A.2d 640 (1976), quoting from Erbe v. State, 25 Md.App. 375, 336 A.2d 129 (1975). Obviously, the evils of lengthy pretrial detention and impeded trial defenses are irrelevant after conviction. The factor of anxiety of the accused refers to a presumptively innocent defendant who must live under a cloud of suspicion until he has an opportunity to establish his innocence. Erbe v. State, supra.

Other principles support the view that sentencing is not a part of the traditional notion of trial. The term “trial” is defined as the proceedings to determine a defendant’s guilt or innocence, commencing with the empaneling of the jury and ending with a rendition of the verdict. Jeffries v. Municipal Court of City of Tulsa, Okl.Cr., 536 P.2d 1313 (1975); Black’s Law Dictionary 1675 (4th ed. 1968). See also State v. Hughes, 170 La. 1063, 129 So. 637 (1930). Moreover, sentencing is not a step in the normal order of trial. LSA-C.Cr.P. Art. 765. The defendant may be afforded a new trial prior to sentencing. LSA-C.Cr.P. Art. 853. Finally, wé note that the imposition of sentence may be deferred for five years as a support for probation. LSA-C.Cr.P. Art. 893.

The American Bar Association “Standards Relating to Speedy Trial” (Approved Draft, 1968) makes no reference to sentencing. An examination of the standards indicates that the American Bar Association authorities did not regard sentencing procedure as part of the trial.

In conclusion, we hold that the defendant’s constitutional right to a speedy trial does not encompass sentencing or appeal.

The defendant, however, is statutorily entitled to imposition of sentence “without unreasonable delay.” LSA-C. Cr.P. Art. 874. Without determining the reasonableness of the delay here, we hold that the defendant is not entitled to have his conviction and sentence set aside, since he sustained no prejudice by the delay in its imposition. LSA-C.Cr.P. Art. 921. The defendant received credit for all time served in Michigan and Louisiana between the trial and sentencing.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The defense avers that his 35-year sentence is unjust and excessive because it is greater than those sentences imposed in the early 1970’s for armed robbery.

In pronouncing sentence, the trial judge noted that the defendant threatened the victim with a knife and that he had a prior criminal record. The trial judge, however, did not consider the Michigan convictions, which occurred after the conviction for which he was being sentenced. The trial judge stated that he would “insofar as humanly possible” impose the same sentence that a court would have imposed at the time of the conviction in 1970.

Armed robbery carries a minimum sentence of five years and a maximum of ninety-nine. LSA-R.S. 14:64. A sentence falling within the statutory limits is generally not subject to review. State v. Gambino, La., 362 So.2d 1107 (1978) and the cases cited therein. Assuming arguendo that we may constitutionally review the instant sentence (State v. Kemp, La., 359 So.2d 978 (1978)), we conclude that the trial judge did not abuse his discretion in sentencing the defendant to 35-years’ imprisonment

This assignment of error is without merit.

We have examined the remaining assignments of error and find that the allegations are insubstantial.

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

CALOGERO, J., concurs.


author: DIXON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Lionel MUSE.
    No. 61870.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      J. Arthur Smith, III, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Lionel Muse and Raymond Williams were jointly charged by bill of information with the crime of simple burglary. Subsequently, the State amended the bill of information to charge defendants in two separate counts with the crime of theft of property valued in excess of $500 in violation of R.S. 14:67 and receiving stolen things valued in excess of $500 in violation of R.S. 14:69. The defendants were tried separately, and defendant Muse waived his right to trial by jury, electing to be tried by the court. After trial he was found guilty as charged in count one and not guilty in count two. Defendant was sentenced to serve five years at hard labor. On appeal he relies on seven assignments of error for reversal of his conviction and sentence.

The facts adduced at trial by the State are: Upon returning home after work, Mr. Farritor of Baton Rouge found that his house had been burglarized during the day. Numerous items were missing from his house including a foreign camera, a Timex watch, stereo speakers, turntable and receiver. Police who were called to the home discovered some of the missing stereo equipment hidden under a bush in an alleyway behind Mr. Farritor’s home. The officers, believing that the burglars would return for the stolen property, put the place under observation.

After dark on the same date, Muse drove a pickup truck down the private alley, turned off the truck’s headlights about one hundred yards from the stolen property, and drove until he reached the stolen property. Muse then stopped the truck, turned on the headlights and he and Williams got out of the truck and started to take the stolen property from under the bushes. At this point, the police officers appeared and arrested the defendants. The truck was registered in Green’s name, and when the police went to Green’s house they found the missing camera that had been taken from Mr. Farritor’s home that same day. Green testified at the trial that Muse gave him the camera as payment for borrowing the truck.

Assignments of Error Nos. 1, 2 and 3

Defendant consolidated his arguments on specifications of error numbers 1, 2 and 3 because they are closely related and involve the important question of the constitutionality of R.S. 15:432 which provides that a person in the unexplained possession of property recently stolen is the thief.

Defendant contends in Assignments of Error Nos. 1 and 2 that the trial court erred in applying R.S. 15:432 when denying defendant’s motion for acquittal because R.S. 15:432 is unconstitutional in that it purports to relieve the State of its constitutional burden of proving beyond a reasonable doubt each and every element of the crime charged. In Assignment of Error No. 3, defendant further contends that the trial judge erred in failing to charge himself as to the entirety of requested special charge number 2 which read:

“The defendant is ‘presumed innocent until proven guilty’ of every essential element of the crime charged, La.Const. of 1974, Art. I, § 16, U.S.Const. Therefore, the statutory presumption created by R.S. 15:432 that ‘the person in the unexplained possession of property recently stolen is the thief’ is unconstitutional, without effect, and cannot relieve the state of its burden of proving beyond a reasonable doubt each and every essential element of the crime charged; rationale of State v. Searle, 339 So.2d 1194 (La. 1976), and authorities cited therein.”

Defendant argues that R.S. 15:432 places on the defendant the burden of proving his innocence, and, consequently, it violates Art. 1, § 16 of La.Const. of 1974 and his right to remain silent. He further contends that R.S. 15:432 fails to meet federal and staté due process standards, that it shifts the ultimate burden of persuasion to the defendant and that it relieves the State of the necessity of producing any evidence that defendant committed the essential elements of the crime of theft, so the State no longer has the constitutional burden of proving beyond a reasonable doubt each and every fact necessary to constitute the crime charged. Finally, defendant contends that it cannot be said with substantial assurance that the presumed fact (that Muse committed the theft) flows beyond a reasonable doubt from the proven fact (that Muse possessed the stolen property) because without R.S. 15:432 presumption there is no evidence as to who committed the theft.

In State v. Searle, 339 So.2d 1194 (La.1976), this court questioned the continuing validity of R.S. 15:432 and suggested legislative attention to the problems, but in Searle, the court said the statute was not unconstitutional on its face, State v. Wom-ack, 283 So.2d 708 (La.1973). As applied to a particular case, if the meaning of the presumption is that defendant must explain his possession of the stolen property to the police or jury, the presumption would not be constitutionally permissible. The statute cannot be interpreted to mean that the defendant must do anything other than produce some evidence contrary to or, at most, create a reasonable doubt as to the presumed fact to destroy the presumption. Otherwise, the ultimate burden of persuasion upon ah essential element of the crime would be shifted by the presumption to the defendant in violation of federal and-.state constitutional principles. Searle, supra, at 1203. See also, State v. Montoya, 340 So.2d 557 (La.1976). The prosecution must demonstrate that the presumed fact must beyond a reasonable doubt flow from the proven fact on which it depends because it would be a denial of due process under both the state and federal constitutions to allow a defendant to be convicted upon the basis of a presumed fact which could not beyond a reasonable doubt be inferred from proven facts. Searle, supra, at 1205. See also, State v. Wingerter, 339 So.2d 1 (La.1976).

Most recently, in State v. Coleman, 358 So.2d 289, 292 (La.1978), this court'stated that it has previously found no constitutional defect when the effect of the R.S. 15:432 presumption is shown only to create an inference that the person in possession of recently misappropriated property is the misappropriator; and so long as in the context of the charge, the jury is adequately informed that the defendant need not testify to the circumstance of his possession of the misappropriated article any more than in the instance of any other circumstantial evidence pointing toward guilt. State v. Curry, 319 So.2d 917 (La.1975), State v. Womack, supra. See also, State v. Jamerson, 341 So.2d 1118 (La.1977).

C.Cr.P. 778 provides that in a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged if the evidence is insufficient to sustain the conviction. This court’s review of a denial of a motion for acquittal is limited to determining whether there is a total lack of evidence to prove the offense or any element of the offense. State v. Gibson, 359 So.2d 147 (La.1978).

In the instant case, during a bench trial, the judge refused to charge himself that the presumption created by R.S. 15:432 was unconstitutional. The judge acknowledged that one cannot convict unless the evidence, direct and circumstantial, in the case eliminates every reasonable explanation or hypothesis of innocence. The judge stated:

“. . . Now, that presumption to my mind, does not mean that the State must not present a case which would convince the trier of fact beyond a reasonable doubt according to the accused his presumption of innocence. What it does mean to me though is that in its presentment the State must in affect (sic) show the trier of facts that the circumstances under which the custody or possession of the particular item is placed in the hands of the party of the accused, is such that he could not have obtained it except by having been involved in a theft, a taking without the consent, leaving to the accused, if he wishes, to come in and explain, . . and I don’t think that flies into the teeth of the presumption of innocence. . . . ”

The judge stated that he saw nothing unreasonable about drawing an “inference” from the disappearance of the camera from the burglarized home and Green’s loaning the truck to Muse in return for the camera. The trial judge concluded that Mr. Williams was not involved when Mr. Green got the camera from Muse and loaned the truck to Muse.

The trial judge recited the essential elements of the crime of theft and said that he saw “some evidence as to each essential ingredient of the offense charged.” In overruling the defense counsel’s motion for acquittal the trial judge stressed the evidence upon which he was making his ruling:

“. . . Intentional means as distinguished from accidental and I think the circumstances under which the receiver and the turntable were stashed there— circumstances under how they [stolen property] were approached and who was driving the vehicle [Muse] and who obtained the vehicle [Muse] and who turned the — another piece of property [camera] over to Mr. Green [Muse], which came out of the same house [as the other stolen property] which was out there in the alleyway, the other property — your motion’s overruled.”

The inference of R.S. 15:432 was not unconstitutionally applied in the instant case. Defendant’s Assignments of Error Nos. 1, 2 and 3 are without merit.

Assignment of Error No. 4

Defendant contends that C.Cr.P. 482 violates the federal and state constitutional prohibition against placing a defendant twice in jeopardy for the same offense, because pursuant to C.Cr.P. 482 the bill of information charged defendant with two offenses, theft and receiving stolen property, both offenses of which allegedly arose from the same act (possession of stolen property).

C.Cr.P. 482 provides:

“A. An indictment for theft may also contain a count for receiving stolen things, and the defendant may be convicted of either offense. Where two or more persons are jointly indicted for these offenses, any or all of the persons indicted may be found guilty of either of the offenses charged. The district attorney shall not be required to elect between the two offenses charged.”

The Official Revision Comment to C.Cr.P. 482 explain the situations in which use of the alternative charging procedure is contemplated:

“(a) This article, following Art. 246 of the 1928 Code of Criminal Procedure, provides for a situation where the state is frequently in justifiable doubt as to which crime will be established by the evidence adduced at the trial. A receiver of stolen things (R.S. 14:69) will be guilty of theft (R.S. 14:67), rather than receiving, if it develops that he procured or in any way participated in the stealing of the goods. This article authorizes the charging of these distinct crimes in separate counts. It is for the jury to determine which charge is supported by the evidence; therefore, the article expressly states that the prosecuting officer shall not be required to elect between the two offenses charged.”

The Fifth Amendment provisions prohibiting double jeopardy were made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Further, the Louisiana Constitution of 1974, art. 1, § 15, provides that no person shall be twice placed in jeopardy for the same offense. The United States Supreme Court defined the guarantee against double jeopardy as including three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711 at 717, 89 S.Ct. 2072 at 2076, 23 L.Ed.2d 656 at 665 (1969).

Recently, in State v. Williams, 359 So.2d 115 (La.1978), the very issue as in the instant case was addressed and after reasoning as above, we stated:

“A reading of Article 482 in conjunction with the criteria set forth by the United States Supreme Court in Pearce readily demonstrates that the article does not violate any of the interests sought to be protected by the Fifth Amendment. Under the article, an accused may not be subjected to multiple prosecutions for the same offense, whether upon conviction or acquittal. In fact, the effect of the article is that there is to be a single prosecution resulting in an acquittal or a single conviction for theft or receiving stolen goods. Further, . . . the statute does not put an accused in danger of receiving multiple punishments for the same offense; the article is couched expressly in the alternative, and provides that the defendant may be found guilty of either offense — not both offenses.” 359 So.2d at 117.

This Assignment of Error No. 4 is without merit.

Assignments of Error Nos. 5, 6 and 7

Defendant contends that trial court erred in allowing the prosecution to impeach, threaten, intimidate and cross-examine its own witness, in failing to grant a mistrial despite prejudicial misconduct of the prosecutor, and in refusing to have all the proceedings in open court recorded and allowing certain proceedings to be conducted in open court outside the presence of the trial judge.

Assignments of Error Nos. 5, 6 and 7 resulted from the testimony of Mr. Green, State witness, who loaned his truck to Muse in exchange for the stolen camera. On direct examination, Mr. Green testified that Muse gave him the camera in payment for the use of Green’s truck, that he had the camera only a short time before the police took it from him but that he could not remember when Muse gave him the camera. To refresh his memory the prosecutor asked for his prior sworn testimony at the preliminary examination hearing where Green had testified that he was given the camera by Muse before Muse took the truck. The defense lawyer objected that the prosecutor was cross-examining or impeaching his own witness but the trial judge called a recess so that the witness could refresh his memory. After recess, the defense lawyer objected again and assigned error because the exchange between prosecution and Mr. Green was not transcribed and because the judge was not present. Calling of a recess is within the discretion of the trial judge, State v. Brown, 322 So.2d 211, 216 (La. 1975), and during the recess trial is not going on and the judge need not be present during recess. Further, in the instant case, a bench trial, the judge, as trier of fact, should refrain from hearing exchanges that take place outside the trial record between attorney and his witness.

Defendant also contends that the State impeached its own witness, Mr. Green. The trial judge called the recess to allow the witness to refresh his memory as to his previous testimony under oath at the preliminary examination. Before recess, the State did not impermissibly impeach its own witness but simply asked Mr. Green to refresh his memory which it has a right to do pursuant to R.S. 15:279. After recess, the State argued in its appellate brief and the trial record supports its argument that the State was surprised by Mr. Green’s continued lack of memory in the face of his contradictory prior sworn testimony and his hostility. Under such circumstances, R.S. 15:487 provides:

“No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.”

In State v. Spotville, 308 So.2d 763 (La. 1975), the State witness signed a statement asserting that he saw the defendant enter the rape victim’s home, but at trial the witness denied having seen anyone enter the victim’s home. This court found no error in permitting the prosecutor to attempt to impeach the credibility of the witness. The court reasoned that the prosecutor justifiably believed that the witness would testify in accordance with the earlier signed statement. In the instant case, the prosecutor did not go so far as to read Mr. Green’s prior inconsistent statement in open court in an attempt to impeach him but only asked Mr. Green to use it to refresh his memory during recess that the judge called.

Finally, the defendant contends that the mistrial should have been called because of the prosecutor’s conduct during recess. Defendant contends that the prosecutor threatened Mr. Green “that if he didn’t refresh his memory in accordance with that preliminary hearing transcript that he was going to be charged with perjury.” Defendant contends that the prosecutor threatened and intimidated Mr. Green. The prosecutor stated at the trial, “I told him that if he testified substantially contradictory to what he had on a former occasion, that under my sworn duty, I was obliged that he would be charged by me with perjury, which I believe the law says is perjury. That’s my position. I wanted him to understand me. I wasn’t threatening him. I was telling him.” The State, in its appellate brief, argues that the comment was not made to influence the finder of fact because it was made during recess.

R.S. 14:124 provides:

“It shall constitute perjury whenever any person, having taken an oath required by law, or made an equivalent affirmation, swears or affirms any fact or state of facts material to the issue or question in controversy; and thereafter in the same or other proceedings, where such matter is material to the issue or question in controversy, swears or affirms in a manner materially contradictory of or inconsistent with his former sworn or affirmed statement. It shall not be necessary for the prosecution, in such case, to show which of the contradictory or inconsistent statements was false; but it shall be an affirmative defense that at the time he made them, the accused honestly believed both statements to be true.
This article shall only be applicable in cases where at least one of the contradictory or inconsistent statements was made in, or for use in, a judicial proceeding or a proceeding before a board or official wherein such board or official is authorized to take testimony.”

In Spotville, supra, at 766, after the trial court ruled that the State could attempt to impeach its own witness, the defendant contended that the State was permitted to “badger” the State witness by reading to him the perjury statute in the presence of the jury rather than outside their presence. This court noted that the “preferable procedure” would be to read the perjury statute to the witness out of the presence of the jury. The court further noted in Spotville that the reading of the statute in the presence of the jury created no prejudice because even assuming that such tactics “badgered” the witness or implied to the jury that the witness should not be believed, the State had already begun impeaching the witness by prior inconsistent statements, and the possible discrediting of the witness by reading the perjury statute added nothing to what the State had already done by leading questions relative to a prior inconsistent statement.

Further, in State v. Selmon, 343 So.2d 720 (La.1977), during cross-exámination of a defense witness the State inquired whether the witness knew what perjury was and when he responded in the negative the prosecutor briefly explained the crime, told the witness the penalties for perjury and also mentioned that due to the witness’ past record the penalties would be enhanced if he was convicted of perjury. The defendant counsel strenuously objected on the basis that the prosecutor was intimidating the witness. This court reasoned that the prosecutor did not dwell on the subject of perjury but only informed the witness of the importance of telling the truth. In addition, in Selmon noting that the trial was not a jury trial, and that the judge found that the witness was in fact not intimidated the court found no reversible error.

In the instant case, the possibility of prejudice to the defendant was not as great as in Spotville or in Selmon. The prosecutor’s suggestion of perjury occurred outside the presence of the trier of fact. Also, the trial record does not indicate that Mr. Green was intimidated by the threat of a perjury charge “if he didn’t refresh his memory in accordance with that preliminary hearing transcript” because after the recess Mr. Green continued to testify repeatedly that he did not know when Muse gave him the camera for use of the truck.

These Assignments of Error Nos. 5, 6 and 7 are without merit.

Accordingly, the conviction and sentence are affirmed.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur in the majority’s determination that R.S. 15:432 was not unconstitutionally applied in this trial which was before a judge alone. The grave danger of the jury’s inability to properly interpret the presumption and its effect did not exist in the instant case. See the dissent of Dennis, J., in which I joined in State v. Coleman, 358 So.2d 289 (La.1978).

      . “A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth.” R.S. 15:432.

      . “A witness may be allowed to refresh his memory by reference to his testimony given on the preliminary examination, or at a coroner’s investigation, or on a previous trial, or, for the purpose of refreshing his present memory a witness may examine memoranda, and it is immaterial by whom or when the memoranda were made, provided that, after such inspection, the witness can testify to the fact.” R.S. 15:279.


author: SUMMERS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Elizabeth L. BATES and Jessie T. Miller. STATE of Louisiana v. Marion F. FARMER and John Cosse. STATE of Louisiana v. Bonnie BRANCH. STATE of Louisiana v. Mary J. RICHARDSON, Mary B. McIntyre and Mardell Stephens;
    No. 61884.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Henry A. Politz, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for defendants-applicants.
    William J. Guste, Jr., Atty. Gen,, Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Lawrence M. Johnson, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Justice.

The eight defendants in these four consolidated cases are employees of Farmers Seafood Company, Inc., of Shreveport, Louisiana. It is charged in a bill of information that they “did purchase, sell, exchange, expose or offer for sale or exchange, or possess with intent to sell or exchange, any freshwater game fish,” a violation of Section 327 of Title 56 of the Revised Statutes. Defendants filed motions to quash and motions to suppress, which were denied by the trial judge. Their application to this Court for certiorari, or review, was granted on April 28, 1978.

Farmers Seafood Company, Inc., has been in the business of selling fresh and frozen seafood, and other game animals and birds, for approximately sixty years. It maintains four outlets in Shreveport. In keeping with its business of furnishing food specialty items, it has imported game fish from other states for many years under regulations which require that the imported fish bear tags indicating that the authorities in the states of origin have approved the exportation and sale. Under these regulations, for example, rainbow trout are received from California and domesticated quail are received from other states and sold by Farmers Seafood Company. In like manner catfish produced in Louisiana are also tagged by Louisiana authorities before they may properly be sold outside the state.

In June of 1975 several sources offered to sell white perch taken in the waters of Mexico to Farmers Seafood Company. The fish were imported from Mexico and subjected to inspection and approval at the border by agencies of the United States government. Proper documentation attested to these facts. When this opportunity was presented, the president of Farmers Seafood Company contacted one of the Commissioners of the Louisiana Wildlife and Fisheries Commission with a view to ascertaining whether the purchase and sale of these fish could be undertaken under the law and regulations pertaining to such matters.

A sample of the fish was obtained and inspected by a state biologist and the Chief of the Commission’s fish division. The President of Farmers Seafood Company was then advised that the white perch from Mexico could be sold legally. Acting on this advice Farmers Seafood Company began the importation and sale of Mexican white perch and black bass in 1975. Its operation was open and public. Notices appeared in newspapers and on the radio advertising the availability of these fish. At no time was the approval for the sale of these white perch revoked.

After beginning the sale of Mexican white perch and black bass, and prior to the arrests of defendants in January 1978, commercial fishermen in Florida were permitted to catch and sell bream, a fish which was overpopulating the waters in and around Lake Okeechobee. These fish were tagged under regulations of the Florida Game and Fresh Water Fish Commission. Farmers Seafood Company also purchased these fish and openly marketed them in their Shreveport outlets.

On January 26, 1978 search warrants were issued upon the initiative and affidavits of the agents of Louisiana Wildlife and Fisheries Commission. The warrants were simultaneously executed at the four retail outlets of Farmers Seafood Company. Bream, white perch and black bass were seized together with documentary evidence establishing that these fish had been imported and purchased. Citations were then issued to the eight employees who are defendants in these consolidated proceedings.

The motions to quash allege that the bills of information do not charge an offense under a valid statute; that Sections 311(21) and 327(A) of Title 56 of the Revised Statutes are unconstitutionally vague, general and indefinite and, as such, violative of Section 2 of Article I of the Louisiana Constitution and the Fourteenth Amendment to the Constitution of the United States. Further, the motions allege, the statutes are null and void because of overbreadth if interpreted to apply to fish legally acquired in a sister state or foreign country.

Sections 327 and 311(21) in question here are contained in Part VII, “Fish and Other Acquatic Life”, of Chapter I of Title 56 of the Revised Statutes containing “General Provisions for Wild Life and Fisheries”. The sections under consideration are contained in Sub-Part A and pertain to the regulation of sport and commercial fishing.

Section 312 of Sub-Part A contains a general introductory provision applicable to the entire sub-part. It declares that the ownership of all fish “existing in the waters of the state” is in the state in its sovereign capacity. And these fish shall not be taken, soldi or had in possession, except as otherwise permitted, and “title of the state to all such fish . . . shall always remain in the state for the purpose of regulating and controlling the use and disposition thereof.” This is a statement of the basic premise upon which the regulatory provisions of Sub-Part A are founded. Such a premise, Louisiana’s sovereignty, is assuredly no basis for regulating the taking of fish in Mexico and Florida.

The particular regulation in contest in the instant case is contained in Section 327 of the Sub-Part A and declares in pertinent part that “No person shall purchase, sell, exchange, expose or offer for sale or exchange, or possess with intent to sell or exchange, any freshwater game fish.” (emphasis added).

Under Section 311, containing “the definitions and constructions” to be used in construing the meaning and purpose of Sub-Part A,. sub-section (21) provides: “Freshwater game fish: any species of fish found in the freshwaters of the state that are taken for sport or recreational purposes. (See game fish).” (emphasis added) Subsection (23) referred in Sub-section (21) defines game fish as “all species of freshwater and saltwater fish which are taken for recreational purposes, and are taken with the aid of or use of, a line, reel, rod, artificial or natural bait.”

It is undisputed in this record that the bream, white perch and black bass found in Farmers Seafood Company outlets were game fish and that they were not “found in the freshwaters of the state.” The meaning of Sections 311 and 327 construed together, as Section 311 directs, are therefore “clear and free from all ambiguity” and “the letter ... is not to be disregarded, under the pretext of pursuing its spirit. La.Civil Code art. 13.

Furthermore, the entire tenor of the sub-part from which the contested sections are derived indicates that the control and regulation of freshwater game fish contemplates those found in the freshwaters of Louisiana. For example, Section 313 declares: “The exclusive control of the fish having a sport or game value in the state is vested in the commission which shall enforce the provisions of law regulating them.” (emphasis added). Reference to “in this state” signifies, in plain language, game fish found in Louisiana waters, not fish harvested from the waters of Mexico or Florida.

In like manner Section 315 defines the authority of the Commission with respect to sanctuaries and propagating places for game fish, authorizing the Commission to set aside “suitable locations in any of the waters of the state ” (emphasis added) and to operate and maintain hatcheries and sanctuaries there. Section 317 authorizes the director of the Commission to declare a closed season “[u]pon securing evidence that the fish in any waters of the state have been depleted.” (emphasis added). Section 318 pertains to the introduction of live fish “into the state.” Nowhere in the sub-part is there a reference to the introduction for human consumption of fresh fish taken in water outside the State. And the Commission’s contemporary construction of its authority does not indicate that any regulation existed which would indicate that introduction for human consumption of fresh fish taken in waters outside the state was contrary to Louisiana Law.

Section 319 prohibits the possession, sale or transportation “into this state” of certain exotic fish. No mention is made of freshwater game fish. Section 320 prescribes the methods of taking freshwater game fish. Although there is no mention of the location affected, it would be specious to read this section as prescribing the method of taking freshwater game fish elsewhere than in this State.

No part of this law indicates an intent to regulate the possession or sale of freshwater game fish taken outside this state.

By their terms Sections 327 and 311(21) do not, therefore, proscribe as unlawful the introduction into this State for human consumption, or the possession or sale thereof, fresh freshwater game fish taken in a foreign nation or another state of the Union, when the taking and disposition of these fish is approved as legitimate in a foreign nation or sister state of the United States.

For the reasons assigned, the ruling of the trial judge is reversed and set aside, and the motions to quash and the motions to suppress filed on behalf of defendants are sustained.

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

I respectfully concur.

R.S. 56:311(21) can be read to define freshwater game fish as either a species or a fish found in state waters. Ambiguous, it must be interpreted favorably to defendants.

Therefore, I agree that the rulings of the trial court should be reversed.