text:
    STATE of Louisiana v. Walter GEORGE.
    No. 59047.
    Supreme Court of Louisiana.
    May 16, 1977.

      A. Deutsche O’Neal, Sr., O’Neal & Ryan, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Walter George was indicted by the grand jury for the Parish of Terrebonne for having committed second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for a period of twenty years. On appeal, defendant relies on thirty assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in sustaining the state’s challenge for cause of prospective juror Junius Prosperie.

During voir dire examination, Mr. Pros-perie testified that he frequented the bar where the offense was committed and knew many of the people who would be testifying at the trial. He further stated that he would fear repercussions from them if he. returned a verdict of guilty and indicated that they might “[p]ut me out of the way, you know.” The trial judge excused the prospective juror for cause with the following comment:

The court finds that Mr. Junius Pros-perie, because of the proximity to the people and place, he in all probability would not be able to give an unbiased, and reach a decision in an unbiased fashion. .

La.Code Crim.P., art. 797 provides that the state or defendant may challenge a juror for cause on the ground that “the juror is not impartial, whatever the cause of his partiality.” This court has consistently held that the trial judge is vested with wide discretion in determining the qualifications of jurors to serve at a trial. Absent a clear showing of abuse of discretion, the trial judge’s ruling should not be disturbed on appeal. State v. Jones, 315 So.2d 650 (La.1975). In view of the testimony of Junius Prosperie on voir dire examination, we are satisfied that the trial judge did not abuse his discretion in sustaining the state’s challenge for cause of this prospective juror.

Furthermore, the record reveals that the state used only seven of the twelve peremptory challenges allowed by law under the provisions of La.Code Crim.P. art. 799. Hence, even had we determined that the trial judge improperly sustained the state’s challenge, defendant would be entitled to no relief. It is well settled that the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law. La.Code Crim.P. art. 800; State v. Boss, 343 So.2d 722 (La.1977); State v. Skelton, 340 So.2d 256 (La.1976); State v. Michel, 225 La. 1040, 74 So.2d 207 (1954).

Assignment of Error No. 2 has no merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in granting the state’s request for sequestration of witnesses, which request was made after the jurors were selected and sworn but prior to the reading of the charge against the defendant, the opening statements and the calling of the first witness. Defendant argues that the state’s request for an order of sequestration came too late. He contends that it was improper to sequester the witnesses after they had been present and heard some of the details of the case during voir dire examination of the prospective jurors.

La.Code Crim.P. art. 764 directs in relevant part:

[U]pon request of the state or the defendant the court shall order that the witnesses be excluded from the courtroom . . . . The court may modify its order in the interest of justice. (Emphasis added.)

In State v. Simpson, 259 La. 94, 249 So.2d 536 (1971), we recognized that La.Code Crim.P., art. 764 does not specify that a request for sequestration of witnesses must be made at any specific time during the course of the trial. More particularly, we noted that the article does not indicate that the request be made at the outset of the trial. We held that it suffices that the request for sequestration be made “at any time during the taking of evidence.” Accordingly, we conclude that the state’s request for an order of sequestration was timely made in accordance with La.Code Crim.P. art. 764 and the jurisprudence of this court.

Under La.Code Crim.P. art. 764, the trial judge has no discretion when an order of sequestration is requested either by the state or the defendant. He must grant the order subject only to his power to modify it at the time it is granted or thereafter “in the interest of justice.” State v. Simpson, supra. In the instant case, defendant could have requested an order of sequestration at the commencement of voir dire examination. Having failed to do so, he is not in a position to complain concerning what witnesses may have heard during the examination of prospective jurors or to insist that the state not exercise its right to request a sequestration order at a later time.

Assignment of Error No. 3 lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in sustaining the state’s objection to the following question propounded to state witness Joseph Moses during defense cross-examination:

Mr. Moses,, knowing the people down there like you do, knowing this man like you do, and knowing the people, I will ask you this question. From the viewpoint of what the people down in that area think of this man, what is his general reputation?

The state objected to the question on the ground that defendant had failed to lay a proper predicate for the introduction of character evidence.

La.R.S. 15:479 provides:

Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him. (Emphasis added.)

In order to elicit positive statements concerning a defendant’s character, a foundation must first be laid demonstrating that the character witness is aware of defendant’s reputation for character among his neighbors. State v. Nix, 327 So.2d 301 (La. 1975); State v. Muse, 319 So.2d 920 (La. 1975). In sustaining the state’s objection to the insufficiency of the predicate in the instant case, the trial judge correctly observed that, although the witness had testified that he was acquainted with defendant and defendant’s neighbors, he had not indicated that he had ever discussed defendant’s character with them or that he was otherwise aware of defendant’s reputation among his neighbors. Accordingly, the trial judge properly sustained the state’s objection to permitting a witness to testify concerning defendant’s character without first establishing a proper foundation for that testimony as required in La.R.S. 15:479. In any event, the record reveals that an adequate foundation was subsequently laid. The witness testified that he had discussed defendant’s reputation with his neighbors and that defendant had a reputation for being a nice, quiet peaceful fellow. Hence, defendant was successful in securing the desired character evidence.

Assignment of Error No. 4 lacks merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6

Defendant contends the trial judge erred in sustaining state objections to the following defense questions asked to state witness Joseph Moses during cross-examination:

Let me ask you this. Being as well acquainted as you are in that neighborhood down there, have you all had some pretty rough instances where people would pass by and shoot guns out of cars?
Can you tell me whether or not at your bar when people drive up there, they leave things in their car? Whether or not there is a considerable amount of taking things out of cars?

Defendant contends that the answers to these questions would have explained defendant’s possession of the murder weapon at the time the offense was committed. He argues that the evidence sought to be elicited would have shown that defendant was justified in carrying a pistol in his car for protection and in removing it from the car when he entered the bar where the murder was committed in order to prevent its being stolen. The state objected to the first question as being irrelevant, and the trial judge sustained the objection. The record suggests that the second question was also disallowed on the basis of relevancy.

La.R.S. 15:441 provides in pertinent part:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. (Emphasis added.)

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). Whatever defendant’s reasons may have been for possessing a firearm prior to the date of the offense, neither defendant’s commission of the offense nor the requisite intent would have been negatived by testimony of shooting incidents from passing cars or of the practice of persons other than the defendant of removing articles from automobiles to avoid theft. Accordingly, the trial judge did not abuse his discretion in sustaining the state’s objections to the above questions on the ground that they were irrelevant.

Assignments of Error Nos. 5 and 6 are without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant contends the trial judge erred in sustaining on two occasions state objections to defense questions concerning defendant’s character.

During cross-examination of state witness David Warren, defense counsel asked whether Warren had heard defendant discussed among his neighbors. The witness responded: “I never heard nobody say nothing about him.” When asked to clarify that remark, the witness reiterated: “ . not whether he was good or bad, nobody didn’t say. ... I never heard nobody discuss him in no kind of way. . . . ” Defense counsel then asked:

All that time you never heard anything bad about him?

The state objected to the form of this question which asked specifically whether the witness had heard anything bad about the defendant.

At the time the disputed question was propounded, the witness had already testified that he had never heard anything good or bad about defendant’s character. Hence, any further testimony on this point would have been entirely repetitive. Moreover, any arguable error in the ruling of the trial judge was cured when the witness stated in response to a later defense question: “I never heard anybody say anything bad about him.” Accordingly, we conclude that defendant suffered no prejudice whatsoever from the ruling of the trial judge sustaining the state’s objection in this instance.

On the second occasion complained of by defendant, the trial judge sustained a state objection to the following question:

Now I ask you this question. If you are that well acquainted with this man, then can you answer the question as to whether the general reputation is good or bad, as to being a quiet, peaceful and law abiding citizen in that community?

La.R.S. 15:479 expresses the general rule that character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him. We have held that the fact that the reputation of an accused has never been discussed in the community in which he lives is admissible as evidence of good character. State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Pace, 183 La. 838,165 So. 6 (1936); State v. Giaccio, 163 La. 563, 112 So. 486 (1927). However, a witness is not in a position to testify affirmatively to the reputation of an accused unless he had heard it discussed. State v. Howard, 230 La. 327, 88 So.2d 387 (1956); State v. Warren, 138 La. 361, 70 So. 326 (1915).

In the instant case, the witness had already testified that he had never heard any discussion of defendant’s reputation. Therefore, the trial judge was correct in sustaining the state’s objection to an affirmative statement by the witness concerning defendant’s general reputation.

Assignments of Error Nos. 7 and 8 lack merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in denying his motion for a mistrial based on alleged leading questions propounded to state witness Isaac Griffin.

On direct examination by the state, the witness had already testified that he was present when defendant walked up to a card table, stated “my wife told me what you said” and then pulled a gun out from inside his shirt and shot the victim (Russell Payne). During further questioning by the state, the following colloquy took place:

Q. Was it a matter of minutes, or was it a matter of seconds, or a matter of hours?
A. I don’t understand what you mean. What you mean, after he stated that he heard what his wife said? I say about a second afterwards.
Q. About a second afterwards, he shot Russell Payne?
A. Yes.

At this point, defendant objected that the state was leading its own witness and moved for a mistrial. The trial judge denied the motion.

La.R.S. 15:277 defines a leading question as “one which suggests to the witness the answer he is to deliver” and prohibits asking such a question of one’s own witness. State v. Johnson, 343 So.2d 155 (La.1977). We are satisfied that the first state question merely apprised the witness of the nature of the state’s inquiry. It did not suggest the answer to be given. The second state question was no more than an attempt to substantiate the witness’ response to the previous question. It is not a leading question to ask a witness what he said previously. State, v. Shepherd, 332 So.2d 228 (La.1976); State v. White, 254 La. 389, 223 So.2d 843 (1969). Accordingly, the trial judge did not err in overruling defendant’s objection to the state’s questions and in denying his motion for a mistrial.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in sustaining the state’s objection to a defense question on the ground that it called for an opinion and/or conclusion on the part of the witness.

The thrust of the accused’s defense to the charge of second degree murder was that he accidentally shot the victim as he was attempting to use his gun as a bludgeon to hit the victim. During both direct and cross-examination, state witness Bernard Flemming testified that he saw defendant swing a gun toward the victim. On cross-examination, defendant asked Flemming the following question:

Did he swing it like he was going to hit, or swing it like he was going to pull a trigger?

The trial judge sustained the state’s objection that the question called for an opinion.

Since specific intent to kill or to inflict great bodily harm was an essential element of the state’s case, the absence of that intent constituted an available defense. A showing that the force applied to the person of the victim was accidental was relevant. La.R.S. 14:10(1); 14:30.1(1). However, it was necessary to make this showing through the introduction of competent evidence. La.R.S. 15:463 directs:

Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.

This court has consistently held that, with rare exception, a witness can testify only as to facts within his knowledge. He may not testify as to an impression he may have. State v. Kirklin, 283 So.2d 713 (La.1973); State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972). While we have also recognized that a witness may properly state a natural inference from something he has observed, this exception to the general rule announced in La.R.S. 15:463 applies only as to subjects regarding which any person of experience might make an inference and only when the witness states all the basic facts upon which the inference is based. State v. Roche, 341 So.2d 348 (La.1976); State v. Clark, 340 So.2d 1302 (La.1976); State v. Prater, 337 So.2d 1107 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Davalie, 313 So.2d 587 (La.1975); State v. Lewis, 288 So.2d 324 (La.1974).

In our view, the thrust of the question propounded in the instant case was to call for a speculative opinion from the witness as to defendant’s intentions as he swung the murder weapon. Inasmuch as the question sought to elicit an uncommuni-cated intent of another, it did not call for the type of natural inference appropriately drawn from observation. Accordingly, the opinion testimony given in response to the disputed question would have been incompetent under La.R.S. 15:463. State v. Kirk-lin, supra. The trial judge properly sustained the state’s objection to defendant’s question.

In any event, state witness Bernard Flemming fully described defendant’s conduct in swinging the murder weapon. Hence, even if the question were considered to be technically proper, any error in sustaining the state’s objection to the question was harmless, since the jury was provided with sufficient evidence to reach its own conclusion with respect to defendant’s subjective intent.

Assignment of Error No. 10 is without merit.

ASSIGNMENTS OF ERROR NOS. 11, 12, 13, 14, 15, 16 AND 17

Defendant contends the trial judge erred in overruling his objection to introducing into evidence seven black and white photographs depicting the victim at the scene of the crime. He argues that the photographic evidence was unnecessary and inflammatory inasmuch as the content of the photographs had already been established by the uncontradicted testimony of previous state witnesses.

It is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Williams, No. 58,679, 343 So.2d 1026 (La., 1977); State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327 So.2d 355 (La.1975). Generally, photographs are admissible which illustrate any fact or which shed light on an issue, or are relevant to describe the person, place or thing involved. State v. Hollingsworth, 337 So.2d 461 (La. 1976). More particularly, photographs of the body of a deceased victim depicting fatal wounds have generally been held relevant to prove the corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Cooper, supra; State v. Beach, 320 So.2d 142 (La.1975).

After examining the photographs in question, we do not consider that they are especially gruesome. Moreover, they were relevant to demonstrate the physical layout of the murder scene. The position of the victim, the angle from which he was shot and the fact that he had no weapon in his hands. Since the probative value of the photographs outweighs any possible prejudicial effect, the trial judge did not err in admitting them in evidence.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 18

Defendant contends the trial judge erred in denying his motion for a directed verdict made at the close of the state’s case on the basis that the state had introduced no evidence of an essential element of the crime, i. e., specific intent.

This matter was tried on October 8-9, 1975. La.Code Crim.P. art. 778 was amended by Act No. 527, § 1 of 1975, effective September 12, 1975, to eliminate the authority of the trial judge to direct a verdict of not guilty in a jury trial. This amendment being procedural in nature is applicable to this trial which was held after the amendment’s effective date. State v. Clark, 340 So.2d 208 (La.1976); State v. Marmillion, 339 So.2d 788 (La.1976). Accordingly, the trial judge had no authority to grant defendant’s motion for a directed verdict.

Assignment of Error No. 18 lacks merit.

ASSIGNMENT OF ERROR NO. 19

Defendant contends the trial judge erred in permitting the state to ask defendant the following question during cross-examination:

Didn’t he throw his hands up after you pointed the gun at him?

At trial, defendant argued that this question was improper in that defendant had not testified that he pointed the gun at the victim but rather that he had swung it in his direction. The state contends that the disputed question was proper cross-examination, arguing that, since it had been established that a bullet from defendant’s gun struck the victim, it was appropriate to infer that the gun was pointed at the victim when fired.

In overruling defendant’s objection to the state’s question, the trial judge made the following observation:

In the interest of saving time we understand that there is a difference of point of view on this as to what happened. I am not going to comment, on the evidence, but I am going to allow the question, subject to that objection, in the interest of getting through this.

When the disputed question was posed to defendant for a second time, he responded: “I don’t know.”

La.R.S. 15:280 provides that when a witness has been intentionally sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case. When a defendant takes the stand in his own behalf, he waives his protection against self-incrimination and is subject to cross-examination just as any other witness. State v. Shelby, 308 So.2d 279 (La.1975); State v. Jones, 284 So.2d 570 (La.1973). We have held that it is permissible for a prosecutor to draw reasonable inferences from other evidence during the questioning of a witness. A considerable latitude is allowed the prosecutor in commenting on the evidence, especially by way of interrogation on cross-examination. State v. O’Conner, 320 So.2d 188 (La.1975). Doubt as to the propriety or extent of cross-examination is resolved in favor of cross-examination. State v. Nero, 319 So.2d 303 (La.1975). Furthermore, it is well settled that the scope and extent of cross-examination rests largely in the discretion of the trial judge and his rulings in respect thereto will not be disturbed in the absence of an abuse of discretion. State v. Nero, supra; State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972).

In our view, the state question objected to by defendant was based on a reasonable inference drawn from evidence already in the record. We are unable to say that the trial judge abused his discretion in overruling defendant’s objection. In any event, in view of defendant’s answer when the disputed question was again posed to him, we are satisfied that the question and answer were not prejudicial.

.On appeal, defendant additionally suggests that the trial judge erred in allowing argument on the disputed question and in making his ruling thereon in the presence of the jury. However, the record reveals that defendant did not make a motion for a mistrial nor did he request an admonition to the jury. No objection to the alleged error was made at the time of its occurrence. It is well settled that in the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of after verdict. La.Code Crim.P. art. 841; State v. Williams, No. 58,679, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976); State v. Burgy, 320 So.2d 175 (La.1975).

Assignment of Error No. 19 lacks merit.

ASSIGNMENT OF ERROR NO. 20

Defendant contends the trial judge erred in overruling his objection to a portion of the judge’s general charge to the jury.

The judge instructed the jury as follows:

There are legal presumptions. 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.
A legal presumption of innocence is in favor of the defendant.

The trial judge then continued to instruct the jurors that:

Another legal presumption is that the defendant intended the natural and probable consequences of his act. This is a presumption in favor of the state.

It is this last paragraph which defendant contends was improperly included in the general charge to the jury. The disputed portion of the charge is found in La.R.S. 15:432. Defendant contends that the reference to a presumption that a defendant intends the natural and probable consequences of his acts had the effect of relieving the state from its burden of proving an essential element of its case, i. e., specific intent.

It is generally recognized that a judge’s charge must be considered as a whole, and particular expressions construed with reference to the context. The ruling of a trial judge on an objection to a portion of his charge will not be disturbed unless the disputed portion, when considered in connection with the remainder of the charge, is shown to be erroneous and prejudicial. State v. Walker, 204 La. 523, 15 So.2d 874 (1943); State v. Davis, Í54 La. 295, 97 So. 449 (1923). More particularly, we have recently held that, where a general intent charge was given in a case requiring proof of specific intent, the erroneous inclusion of such an instruction was harmless error under the facts of that case where specific intent was also charged and where the full general charge fairly informed the jury of the requisite intent to be proved by the state. State v. Anderson, on rehearing, 343 So.2d 135 (La.1977).

In the instant ease, the state relied in its prosecution of defendant on that portion of La.R.S. 14:30.1 which provides that second degree murder is the killing of a human being “when the offender has a specific intent to kill or to inflict great bodily harm.” Specific intent was therefore an essential element of the state’s proof of guilt under La.R.S. 14:30.1(1). The trial judge read the second degree murder statute to the jury as part of his general charge. In addition, he instructed the jury relative to specific intent, its formation, and its proof by surrounding circumstances. On the other hand, the portion of the judge’s charge to which defendant objects was general in nature and preceded that portion of the charge dealing with the particular crime charged and the requisite specific intent.

While the portion of the general charge taken from La.R.S. 15:432 might arguably be construed as relieving the state from its burden of proving specific intent, we are unable to say, under the particular facts and circumstances of this case, that the charge taken as a whole created any confusion in the minds of the jurors as to the requirement that the state prove specific intent.

Assignment of Error No. 20 is without merit.

ASSIGNMENTS OF ERROR NOS. 21, 22, 23 AND 26

Defendant contends the trial judge erred in overruling objections to portions of the judge’s general charge to the jury and in refusing a requested special charge which would have negatived the disputed portions of the general charge.

In Assignments of Error Nos. 21 and 22, defendant argues that it was improper for the trial judge to refer to specific intent to inflict “great bodily harm” and “serious bodily injury” in his general charge to the jury. In Assignment of Error No. 23, defendant contends that it was error for the trial judge to instruct the jury relative to how specific intent to inflict great bodily harm may manifest itself. The trial judge is claimed to have erred in these respects because the state by failing to refer to specific intent to inflict great bodily harm in its opening statement had thereby limited itself to proving that defendant intended to kill the victim.

La.Code Crim.P. art. 766 provides:

The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.

La.Code Crim.P. art. 769 directs:

Evidence not fairly within the scope of the opening statement of the state shall not be admitted into evidence.
If the state offers evidence that was inadvertently and in good faith omitted from the opening statement, the court in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense.

It is well settled that the state need not give in minute detail all evidence by which it intends to prove its case. State v. Kinchen, 342 So.2d 174 (La.1977); State v. Sneed, 316 So.2d 372 (La.1975); State v. Roquemore, 292 So.2d 204 (La.1974). We have held that evidence not specifically referred to in an opening statement but which by implication can be considered within the scope of the opening statement is admissible. State v. Fields, 342 So.2d 624 (La.1977).

The record in the instant case reveals that, during the state’s brief opening statement, the district attorney informed the jury that defendant was charged with second degree murder and read the applicable statute which includes the phrase “specific intent to kill or to inflict great bodily harm.” The prosecutor further advised the jury that the state would prove that defendant did intentionally “shoot and kill” the victim. In our view, this remark did not limit the state to proving that defendant specifically intended to “kill” defendant rather than to inflict great bodily harm. Evidence from which the jury could infer specific intent to inflict great bodily harm was fairly within the scope of the opening statement.

In any event, defendant at no time objected to the introduction of such evidence during trial. Moreover, defendant does not claim that he was surprised or prejudiced in the preparation of his defense. Thus, even if evidence of specific intent to inflict great bodily harm were not considered implicit in the state’s opening statement, the evidence was nonetheless admissible in the discretion of the trial judge under La.Code Crim.P. art. 769. Since such evidence was properly admitted, the trial judge did not err in charging the jury with respect to specific intent to inflict great bodily harm or serious bodily injury and in overruling defendant’s objections to the charge.

In Assignment of Error No. 26, defendant complains that the trial judge refused to give a requested special charge to the effect that the state’s opening statement limited it to proof of an intentional shooting and that failure to prove same should result in a verdict for defendant. It is well established that a trial judge is required to give a requested special charge only when the charge is wholly correct and pertinent. La.Code Crim.P. art. 807; State v. James, 339 So.2d 741 (La.1976); State v. Miller, 338 So.2d 678 (La.1976). We have already determined in our treatment of Assignments of Error Nos. 21, 22 and 23 that the state’s opening statement did not preclude evidence of specific intent to inflict great bodily harm, which evidence was admitted without objection by defendant. Accordingly, the trial judge did not err in refusing to give the requested special charge.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 24 AND 25

Defendant contends the trial judge erred in refusing to give two special requested charges to the jury dealing with the admissibility and weight of character evidence. Requested special charge No. 1 would have instructed the jury that “the best evidence of good reputation is where a witness testified that he has never heard it discussed, questioned, or talked about.” The second requested charge was simply an instruction that character evidence is admissible and should be considered by the jury.

La.Code Crim.P. art. 807 provides in pertinent part:

A requested special charge shall be given by the court if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

With respect to the first special charge requested by defendant, this court has held that, although it is admissible character evidence to show that a defendant’s reputation has never been discussed, a charge to the effect that such negative evidence is often of the “highest value” is not wholly correct inasmuch as there is no law to that effect. State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Leming, 217 La. 257, 46 So.2d 262 (1950). Moreover, such a charge is additionally improper in that it might be considered as a comment on the evidence by the judge, which is prohibited by La.Code Crim.P. art. 806. Accordingly, defendant’s first requested special charge that the absence of discussion of defendant’s reputation constitutes the “best evidence” of his character was not wholly correct and was properly refused by the trial judge.

Defendant’s second requested special charge was also properly refused by the trial judge. The record reflects that the law relative to the admissibility of character evidence was adequately explained in the general charge to the jury. It is well settled that special charges need not be given if fairly and accurately included in the judge’s general charge. La.Code Crim.P. art. 807; State v. Singleton, 321 So.2d 509 (La.1975).

Assignments of Error Nos. 24 and 25 are without merit.

ASSIGNMENTS OF ERROR NOS. 27, 28 AND 29

Defendant contends that the trial judge erred in refusing to give the following requested special charges relative to specific intent:

Requested Special Charge No. 4:

When applied to the present case, I charge you that in order for this defendant to be found by you to have specific intent to kill, it is necessary for the State to prove that the defendant ‘actively desired’ to kill the decedent.

Requested Special Charge No. 5:

I charge you that under this statute when referring to specific intent, this means that the offender must be found to have subjectively desired the prohibited result.

Requested Special Charge No. 6:

I charge the jury that the phraseology ‘specific intent’ is synonymous with ‘subjectively desired’ and also ‘actively desired.’

Inasmuch as it referred to specific intent to kill and neglected to state the full phraseology of the second degree murder statute which includes specific intent to inflict great bodily harm, Requested Special Charge No. 4 would have required further explanation. It is well settled that a requested special charge need not be given unless it is wholly correct and pertinent and does not require qualification, limitation or explanation.

Requested Special Charges Nos. 5 and 6 were also properly refused by the trial judge. The record reflects that the general charge to the jury adequately covered the applicable law concerning specific intent. La.Code Crim.P. art. 807 provides that requested special charges need not be given if included in the general charge.

Assignments of Error Nos. 27, 28 and 29 lack merit.

ASSIGNMENT OF ERROR NO. 30

Defendant contends the trial judge erred in failing to give the following special requested charge:

Where specific intent is an element of a crime, the specific intent must be proved as an independent fact and cannot be presumed from the commission of an unlawful act. (Emphasis added.)

La.R.S. 15:445 provides that, although intent is a question of fact, it need not be proven as a fact; it may be inferred from the circumstances of the transaction. Hence defendant’s requested special charge was not wholly correct insofar as it would have instructed the jury that specific intent must be proven as a fact. Defendant’s charge would have required qualification, limitation or explanation. La.Code Crim.P. art. 807 provides that a trial judge need not give a requested special charge under these circumstances. Accordingly, the trial judge did not err in refusing defendant’s requested special charge relative to the method of proving specific intent.

Assignment of Error No. 30 is without merit.

DECREE

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

DIXON, J., concurs, disagreeing with the treatment of assignments 10, 24 and 25.

DENNIS, J., concurs in the decree.

      . Assignment of Error No. 1 has been specifically abandoned in brief to this court.

      . The state did not attempt to show that defendant committed the offense while engaged in the perpetration or attempted perpetration of any felony enumerated in La.R.S. 14:30.1(2).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Lavada ANTHONY.
    No. 59144.
    Supreme Court of Louisiana.
    May 25, 1977.

      Timothy R. Higgins, Morrison & Higgins, Hammond, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The sentence imposed upon the defendant in the instant case, life imprisonment without benefit of pardon, probation or parole for twenty years, is improper. Gubernatorial pardon or commutation, constitutionally permitted, may not be precluded by the terms of an imposed sentence. La.Const. Art. 4, § 5 (1974); State v. Williams, 338 So.2d 672 (La.1976).

Defendant’s conviction is affirmed, but his sentence is vacated and set aside and the case is remanded for resentencing in accordance with the foregoing.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Conley T. JONES.
    No. 59861.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Conley T. Jones applying for writs of certiorari, prohibition, mandamus and stay order.

Writ granted. Judgment of trial judge reversed and set aside. Record does not support finding of direct contempt. Accordingly, case is remanded to the trial judge to proceed in this matter as set forth for constructive contempt. La.Code Crim.P. art. 23 et seq.

SUMMERS, Justice.

This record is vague and indefinite on the question whether defendant was ordered by the trial judge to return to court. Nevertheless, on this tenuous showing the Court reverses the trial judge and orders a hearing on an entirely different offense — constructive contempt — when the contempt citation involved direct contempt. All of this without allowing the parties to be heard. I cannot agree. I therefore dissent.


text:
    Sherman A. BERNARD, Commissioner of Insurance, State of Louisiana v. FIRST REPUBLIC LIFE INSURANCE.
    No. 59978.
    Supreme Court of Louisiana.
    June 9, 1977.
   In re: First Republic Life Insurance, applying for remedial and supervisory writs of certiorari, mandamus and prohibition.

Writ denied. Ruling of trial judge complained of is correct for reasons assigned by the Court of Appeal.


text:
    Sherman A. BERNARD, Commissioner of Insurance, State of Louisiana v. FIRST REPUBLIC LIFE INSURANCE CO.
    No. 59999.
    Supreme Court of Louisiana.
    June 9, 1977.
   In re: First Republic Life Insurance Co., applying for supervisory and remedial writs of certiorari, prohibition and mandamus.

Writ denied. There is no showing of abuse of discretion by the trial judge at this time.


text:
    DIAMOND ELECTRICAL CO. INC. v. UNION AMERICA MORTGAGE & EQUITY TRUST et al.
    No. 59984.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Diamond Electrical Co., Inc., and Landry and Pennington Plumbing Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 345 So.2d 119.

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


text:
    Debra GATHE et al. v. AETNA CASUALTY & SURETY COMPANY.
    No. 59974.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Debra Gathe and Ronald Charles Gathe, Sr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 345 So.2d 117.

Writ denied: The result is correct.


text:
    William W. HERPEL, etc., et al. v. UNION BANK OF CALIFORNIA et al.
    No. 59957.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Union Bank applying for supervisory and remedial writs.

Writ denied. On the showing made the result does not appear to be incorrect.


text:
    Charles KILSON, Jr. v. The AMERICAN ROAD INSURANCE COMPANY.
    No. 59981.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Charles Kilson, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson, 345 So.2d 967.

Writ denied: Under the pleadings, there is no error in the result of the Court of Appeal judgment.


text:
    Mrs. Lois G. MERRILL v. SUNBEAM CORPORATION et al.
    No. 59948.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Mrs. Lois G. Merrill, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Red River, 344 So.2d 445.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Alfred SCOTT et al.
    No. 59973.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: State of Louisiana through the District Attorney for the Parish of Orleans applying for writs of certiorari, prohibition and mandamus.

Not considered. Not timely filed. The extension of time was granted after the original time fixed for applying had expired. State v. Smith, 284 So.2d 576 (La.1973).


text:
    STATE of Louisiana v. Shirley DIXON.
    No. 59972.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Shirley Dixon applying for writs of certiorari, prohibition and mandamus.

Writ refused. On the showing made, we find no abuse of discretion by the trial judge.


text:
    STATE of Louisiana ex rel. Frank C. WILLIAMS v. Ross MAGGIO, Warden.
    No. 59971.
    Supreme Court of Louisiana.
    June 10, 1977.
   In Re: Frank C. Williams, applying for remedial writs.

Writ denied. The relator is not entitled to the relief requested. Relator was present at the hearing of which he requests a transcript, and this court will have access thereto in any future application for habeas which he might file.


text:
    STATE of Louisiana v. Bela ANDRASI.
    No. 59966.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Bela Andrasi, applying for remedial writs.

Writ denied. There is no merit in applicant’s application.


text:
    STATE of Louisiana Through DEPARTMENT OF HIGHWAYS v. L. B. PONDER, Jr.
    No. 59963.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: L. B. Ponder, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 345 So.2d 106.

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


text:
    STATE of Louisiana v. Kerry NETTLETON, Larry Nettleton and Terry Nettleton.
    No. 59959.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Kerry Nettleton, Larry Nettleton and Terry Nettleton applying for writ of certiorari and review.

Writ denied: Insufficient showing to justify exercise of our supervisory jurisdiction. In the event of conviction, relator will have an adequate remedy by review.


text:
    STATE of Louisiana v. Roy Allen TATE.
    No. 59875.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Roy Allen Tate, applying for supervisory writs and writs of prohibition, mandamus and for stay order.

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


text:
    STATE of Louisiana v. Willie WALKER.
    No. 59958.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Willie Walker, applying for writs of certiorari, mandamus and prohibition.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Robert Lee BROWN.
    No. 59908.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Robert Lee Brown, applying for remedial writs.

Granted. Application referred to trial judge for his action.


text:
    STATE of Louisiana ex rel. Wesley TUMBLIN v. COURT REPORTER CRIMINAL DISTRICT COURT, SECTION "G", PARISH OF ORLEANS.
    No. 59671.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Wesley Tumblin applying for writ of mandamus.

Writ granted. It is ordered that a mandamus issue commanding the trial judge to rule on relator’s habeas corpus petition and that a copy of that petition in the record of this court be transmitted to the trial judge for his ruling.


text:
    STATE ex rel. Rudolph WILSON, Sr. v. Charles C. FOTI, Jr., Criminal Sheriff, Orleans Parish.
    No. 59382.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Rudolph Wilson, Sr., applying for writ of habeas corpus.

Granted. In these unusual circumstances, an evidentiary hearing is ordered on this application, counsel to be appointed by the trial judge to represent applicant on the issue of ineffective counsel.


text:
    STATE of Louisiana ex rel. Matthew HENDERSON v. STATE of Louisiana.
    No. 59987.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Matthew Henderson applying for remedial writs.

Writ denied. Relator s appeal is pending. LSA-C.Cr.P. art. 363. See relator’s prior application No. 59335, La., 342 So.2d 1120.


text:
    Mason QUINNEY, Jr. v. UNITED STATES FIDELITY AND GUARANTY CO. et al.
    No. 59960.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Mason Quinney, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 345 So.2d 262.

Application denied; no error of law in the judgment of the Court of Appeal.


text:
    Fred WOMACK v. DAY SANITARY SERVICE, INC.
    No. 59760.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Petition to reconsider writ denial.

Motion to reconsider granted on a showing that the post office postmark was unreliable.


text:
    CITY OF BATON ROUGE v. Mary K. KLEINPETER.
    No. 59950.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Mary K. Kleinpeter, applying for writ of review.

Writ refused. On the assignment of error, there is no merit in the application.


text:
    Bobby BRADFORD et al. v. Lee R. THOMAS, Jr., et al.
    No. 59931.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Bobby Bradford, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bienville. 344 So.2d 717.

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


text:
    Numa GUIDRY et al. v. Mark CHERAMI et al.
    No. 59970.
    Supreme Court of Louisiana.
    June 10, 1977.
   In re: Numa Guidry, et ux., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche. 345 So.2d 157.

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


text:
    STATE of Louisiana v. Morris JOSEPH.
    No. 60054.
    Supreme Court of Louisiana.
    June 14, 1977.
   In re: Morris Joseph applying for remedial writ and stay order.

Writ denied. With respect to court’s ruling binding defendant over for trial, the showing made does not warrant the exercise of our supervisory jurisdiction. With respect to court’s ruling overruling the motion to quash, defendant has an adequate remedy by review in event of conviction.


text:
    STATE of Louisiana v. Clarence Bill McCORD.
    No. 59907.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Clarence Bill McCord applying for remedial writs.

Writ denied. Applicant does not state grounds for supervisory relief. On the showing made the matters complained of are not appropriate for habeas corpus consideration, since they may be raised and reviewed in a forthcoming appeal C.Cr.Pr. Art. 363.


text:
    STATE of Louisiana v. Leo J. MULLER, Sr.
    No. 59929.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: State of Louisiana, applying for writ of certiorari.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Robert F. Collins, Magistrate, Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 6th day of July, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    Roy CASE v. ARROW TRUCKING CO. et al. Dianna Cheramie ESTE et al. v. ARROW TRUCKING CO. et al.
    No. 60016.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Arrow Trucking Co., Darrell Wayne Smith, The Continental Ins. Co., and Reserve Insurance Co., applying for writs of mandamus, certiorari or review.

Writ denied. The rulings of the trial judge are correct for reasons assigned by the Court of Appeal.


text:
    STATE of Louisiana v. Steven A. BURGER.
    No. 59989.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Steven A. Burger, applying for writs of certiorari, prohibition and mandamus.

Writ denied. There is no error in the ruling complained of.


text:
    Patricia LaCROIX, as natural tutrix of the minor, Michelle Watts v. MIDDLE SOUTH SERVICES, INC., Louisiana Power and Light Co., and Harold L. Quave.
    No. 59983.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Louisiana Power and Light Co. and Harold L. Quave applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany. 345 So.2d 136.

Application denied; the result is correct.


text:
    Mrs. John B. ICKLONE v. TRAVELERS INDEMNITY CO.
    No. 59979.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Mrs. John B. Icklone applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 345 So.2d 202.

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


text:
    CITY OF BATON ROUGE v. William D. SMITH.
    No. 59965.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: William David Smith applying for writs of certiorari, prohibition and review.

Writ refused. No merit in application.


text:
    Mary Alice GUILBEAU et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 59961.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Mary Alice Guilbeau, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 345 So.2d 79.

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


text:
    LAFAYETTE AIRPORT COMMISSION v. J. Maxine ROY et al.
    No. 60042.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Lafayette Airport Commission and Lafayette Parish Police Jury, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 345 So.2d 247.

Not considered. Not timely filed.


text:
    STATE of Louisiana, ex rel. Quenton N. BROWN v. Hon. Robert JOHNSON, Judge, 16th Judicial District Court, Parish of St. Mary, Franklin, La.
    No. 59839.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Quenton N. Brown applying for remedial writs.

Writ denied. The application is moot.


author: HOOD, Judge.

text:
    WM. T. BURTON INDUSTRIES, INC., Plaintiff-Appellant, v. M. D. WELLMAN, Jr., Defendant-Appellee.
    No. 5390.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 1976.
    Rehearing Denied July 1, 1976.
    Writ Granted Oct. 1, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh, by William J. Clarkson, Lake Charles, for plaintiff-appellant.
    Walton J. Barnes, Baton Rouge, for defendant-appellee.
    Before HOOD, WATSON and CU-TRER, JJ.
   HOOD, Judge.

This is a boundary action instituted by William T. Burton Industries, Inc. (Burton) against M. D. Wellman, Jr. Wellman filed an exception of prescription of ten, twenty and thirty years. Judgment was rendered by the trial court sustaining the exception of prescription of thirty years, and fixing the boundary between plaintiff’s property and that of defendant as the fence line now existing between the said estates. Burton appealed. Wellman answered, seeking damages for a frivolous appeal.

The principal issues presented are: (1) Is it mandatory in a boundary action that a surveyor be appointed and that he make a proces verbal of his work, as provided in LSA-C.C. arts. 833 and 841 and LSA-C.C.P. art. 3692, before judgment may be rendered fixing or establishing the boundary? (2) Is plaintiff entitled to judgment fixing the boundary in accordance with a survey, regardless of whether the court determines that the line should be established along the ideal boundary or along a fence or other visible marker shown on the survey ?

Plaintiff Burton alleges that since May 2, 1955, it has owned the following described property situated in Vernon Parish, Louisiana, to-wit:

The Northwest Quarter of the Northwest Quarter (NW of NW (4) of Section 20, Township 2 North, Range 5 West, in Vernon Parish.

Defendant Wellman purchased from W. C. Jeter, by deed dated September 4, 1951, the following described property, also located in Vernon Parish:

N Yz of NE ;4 of NW Section 20, Tp. 2 NR 5 West.
Also begin at SW corner of NE of SW 14 Section 20. Tp. 2 N R 5 West, thence run North 220 yards, thence East 110 yards, thence South 220 yards, thence West 110 yards to point of beginning.

Wellman’s property lies immediately east of and adjacent to the land owned by plaintiff Burton. The “ideal” boundary between the two estates, that is the dividing line which is shown by their respective titles, is the east line of the northwest quarter of the northwest quarter of Section 20, or the west line of the northeast quarter of the northwest quarter of that section, as shown by. official government surveys.

Burton instituted this suit on April 23, 1974, to fix the boundary between those adjoining estates. It alleges that Wellman, or his predecessors in title, erected fences along or near the east boundary of plaintiff’s property, that defendant wrongfully claims that those fences constitute the boundary line separating the two estates, and that the parties have failed to reach an amicable settlement of their boundary dispute. Plaintiff prays that a surveyor be appointed to survey the properties and to file a proces verbal of his work, and that judgment be rendered fixing the boundary.

Defendant Wellman filed a peremptory exception of prescription, alleging that “plaintiff’s cause of action, if indeed it existed, is prescribed by the prescriptions of ten (10) years, twenty (20) and thirty (30) years, under the provisions of LSA-C.C. Article 852, etc.” A hearing was held on that-exception, and at that hearing defendant introduced evidence tending to establish that a fence, running north and south on or near the ideal boundary, has been in existence since 1933, and that defendant or his ancestors in title have possessed the property lying immediately east of that fence since that time.

The defendant has not filed an answer, and the case has never been tried on its merits. The only hearing which has been held was on the above exception of prescription.

A surveyor has never been appointed by the court, and the record does not contain a plat of a survey or a proces verbal of the work of a surveyor. Apparently no survey of any kind has ever been made of either tract of land-involved here, except that the trial judge observed in his reasons for judgment that in 1933 a prior owner of defendant’s property had a Mr. Charles Smith, “who did a lot of surveying in the area,” locate the corners of defendant’s property before fences were built around it. The record does not show, and the trial judge did not know, whether Mr. Smith was a licensed surveyor or civil engineer. He was not called as a witness, and neither party produced a plat or writing of any kind which may have been prepared by him.

Both parties concede that they do not know whether the existing fence is located on the ideal boundary line between the two estates, or whether it is located wholly or partly on the east or on the west side of that line. Defendant Wellman obviously assumes that the fence is located on the west side of the quarter section line (the ideal boundary), because otherwise there would be no reason for him to file the above pleas of acquisitive prescription.

The trial court concluded that a fence has existed between the two estates since 1933, that the respective owners and their ancestors in title have acquiesced in the location of that fence, that Wellman was entitled to “tack” the possession of his predecessors in title to his own possession, and that Wellman thus acquired title to all of the property lying east of and immediately adjacent to the above fence by prescription of thirty years. Judgment was rendered sustaining defendant’s exception of prescription of thirty years, and decreeing that the boundary between the estates of plaintiff and defendant is “fixed and established as the fence line now existing between the said estates as established, marked and maintained by the erection of said fence in the year 1933 and as maintained and continued by M. D. Wellman, Jr., and his predecessors in title from that date to the present time.” Plaintiff Burton appealed.

After taking the appeal, the appellant timely designated the portions of the record which it desired to constitute the record on appeal, and the appellee did not designate any other portions to be included. Neither party desired to include the transcript of the testimony taken at the hearing on the exception of prescription as a part of the record, so that evidence is not before us. The trial judge analyzed the testimony of each witness in his detailed reasons for judgment, however, and both parties apparently rely on that analysis for at least some of the facts.

Burton contends that a boundary action is imprescriptible, and that even if defendant should prove the existence of the fence and his possession of all property lying-east of that fence for thirty years, plaintiff nevertheless has the right to have a surveyor appointed by the court, to obtain a proces verbal of the work of that surveyor, and to have the boundary judicially determined in accordance with a survey, whether along ideal boundary lines or along an existing fence or other visible markers.

Defendant Wellman contends that LSA-C.C. art. 841 and LSA-C.C.P. art. 3692, both of which appear to require a survey as a precedent to a judgment fixing a boundary, apply only where the evidence is insufficient to establish the boundary. He argues that those articles do not apply here because “the fence itself establishes the boundary and it is clearly delineated,” and that under the existing circumstances it would be “manifestly absurd” and “utterly superfluous” to appoint a surveyor to establish “the ideal boundary” between the two estates.

The law provides that each of the owners of contiguous estates has the right to compel the other to fix the limits of their respective properties, when the two estates have never been separated, or have never had their boundaries determined, or if the bounds which have been formerly fixed are no longer to be seen or were wrongfully placed. LSA-C.C. art. 823 and LSA-C.C.P. art. 3691.

Article 825 of the Civil Code provides that “The action of boundary, like that of partition, cannot be prescribed against.”

Title V, of Book 2, of the Civil Code, is entitled “Of Fixing the Limits, and of Surveying of Lands.” Article 833, contained in that title, provides:

“Whether the limits be fixed judicially or extra judicially, it must be done by a land surveyor or civil engineer licensed to practice land surveying in this State, who if the limits be fixed judicially, shall be bound to make a proces verbal of his work which shall be signed in the presence of two competent witnesses; provided, however, that any written agreement, heretofore or hereafter made, which designates or delimits all or a part of the boundary between two or more estates is binding upon all parties thereto who are sui juris, their heirs, successors and assigns, to the same extent as any other written agreement affecting immovable property.”

LSA-C.C.P. art. 3692, relating to “Boundary Action,” provides that “The court shall appoint a surveyor to inspect the lands in question and to make plans showing the respective contentions of the parties.” The official comment appearing under that article reads:

“This article is substantially the same as Art. 841 of the Civil Code in that it makes the appointment of a surveyor mandatory upon the court.”

In McDaniels v. Miller, 136 So.2d 763 (La.App. 1 Cir. 1962), the defendant converted an injunction suit into a boundary action. He filed pleas of prescription, claiming title up to an existing fence, and he prayed that the boundary be established along that fence line. The court did not appoint a surveyor, but defendant (plaintiff in the boundary action) engaged a licensed surveyor, W. A. Tycer, who consulted both parties before proceeding to locate the boundary line. Judgment was rendered by the trial court fixing the boundary along the fence line, and plaintiff (defendant in the boundary action) appealed. The First Circuit Court of Appeal reversed that part of the trial court judgment which established the boundary, assigning as its reasons therefor that a surveyor had not been appointed by the trial court pursuant to LSA-C.C. art. 833. After citing that article and other provisions of the Civil Code, the court stated:

“. . . Consequently the survey was an absolute nullity and could not serve as the basis for a judicial determination of the boundary between the estates of the litigants at bar. Article 829, LSA-R.C.C. Tycer readily concedes he did not observe the formalities prescribed by law in such instances. He further acknowledges his survey was entirely informal and private since he was unaware it was to be used in the fixing of a boundary either judicially or extrajudicially.
“From the foregoing it follows the learned trial court was without right, power or authority to fix the boundary between the contiguous estates of these litigants. Sharpless v. Adkins, La.App., 16 So.2d 556. In view of defendant’s re-conventional demand for a judicial determination of the boundary the trial court should have appointed a surveyor pursuant to LSA-R.C.C. art. 841 and instructed him to proceed according to law. Since the trial court erroneously fixed the boundary in the case at bar its action in this regard must be set aside.”

We also note that in McDaniels, supra, the plaintiff (defendant in the boundary action), filed a plea of prescription of ten-years under LSA-C.C. art. 853, alleging that a written agreement had been entered into by the authors in title of both parties, Amacker and Acy, fixing and establishing the boundaries between the two estates. The Court of Appeal overruled that plea of prescription because the boundary agreement had not been based on a survey by a registered surveyor. The court said:

“The record in the instant case reflects that the boundary established by Amacker and Acy was not fixed according to the mandatory requirements of Articles 834 to 838, inclusive, of our LSA-Civil Code, in that there was no survey by a registered surveyor and no proces verbal of a survey. Under such circumstances, plaintiffs’ plea of ten years prescription under Article 853, LSA-R.C.C. is without merit.”

In Bollin v. Stafford, 297 So.2d 711 (La.App. 1 Cir. 1974), involving a boundary action, the trial court appointed two surveyors at different times, but neither of them made a survey of the property or filed a proces verbal of his work. Surveys were made by three other surveyors, however, and the trial court rendered judgment fixing the boundary in accordance with one of those surveys. On appeal, the First Circuit Court of Appeal reversed the judgment of the trial court because of its failure to appoint a surveyor. The court said:

“It is mandatory that a judgment fixing the boundary between contiguous property be preceded by an establishment of the boundary line by a land surveyor or civil engineer licensed to practice land surveying in this state who has been first appointed by the court and duly sworn to conduct the survey. The surveyor shall file a proces verbal of his work. In particular, the requirements of LSA-C.C. Articles 833, 834, 835, 838 and 841 must be complied with.”
“As no survey was made by a court appointed land surveyor or licensed civil engineer licensed to practice land surveying, the judgment rendered by the trial court is null.”

The case of Bernelle v. Davenport, 116 So.2d 138 (La.App. 2 Cir. 1959), involved a boundary action in which the defendant filed a plea of prescription of thirty years, claiming to have possessed for that period of time up to an existing fence. After trial, the court concluded that the evidence was sufficient to sustain that plea of prescription. The court appointed a surveyor prior to rendering judgment, but the surveyor failed to prepare a plat showing the location of the fence. The Court of Appeal, Second Circuit, reversed the trial court, and rendered judgment sustaining defendant’s plea of prescription of thirty years, but it remanded the case to the trial court with orders that the court-appointed surveyor be instructed to prepare a plat fixing the location of the fence line, and that upon filing of that plat judgment he rendered by the trial court establishing the fence line as a boundary, “according to the exact location thereof.” The court said:

“Despite the fact that this is a boundary action instituted under the specific provisions of the LSA-Civil Code, art. 823 et seq., it is noted that such provisions were not complied with and a proper and exact plat was not filed by the court appointed surveyor. For this reason we are unable to render judgment exactly fixing the southern boundary of defendant’s property, and, accordingly, the case must be remanded for appropriate action which will permit the rendition of an accurate judgment.”

After considering the above authorities, we have concluded that a party to a boundary action, if he is entitled to maintain that action at all, is entitled to have a surveyor appointed by the court to inspect the lands or premises, and to have the benefit of a proces verbal of the work of that surveyor, before judgment fixing the boundary is rendered, unless it is shown that the parties have entered into a valid written agreement designating the boundary between the estates. See LSA-C.C. arts. 823, 825, 833 and 841; and LSA-C.C.P. art. 3692. The appointment of a surveyor and the making of a proces verbal of his work is required, we think, whether the court determines that the boundary should be fixed along the ideal boundary line or along an existing fence line or other visible markers revealed by a survey. See also Gibson v. Berry, 124 So.2d 195 (La.App. 2 Cir. 1960); Alcus v. Elliser, 310 So.2d 663 (La.App. 1 Cir. 1975); Sharpless v. Adkins, 16 So.2d 556 (La.App. 2 Cir. 1943); Randazzo v. Lucas, 92 So.2d 398 (La.App.Orl.1957); Simmons v. Dixon, 174 So.2d 138 (La.App. 1 Cir. 1965).

Defendant contends, however, that plaintiff is barred from maintaining this boundary action by the' prescriptions of ten or thirty years, under Articles 852 or 853 of the Louisiana Civil Code. He concedes that LSA-C.C. art. 825 provides affirmatively that the action of boundary “can not be prescribed against,” but he argues that that article must be read in connection with other provisions of the Civil Code, and that when considered with Articles 852 and 853 the conclusion must be reached that a boundary action is subject to the laws of prescription. He relies largely on the above articles, and on Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957); LaCalle v. Chapman, 174 So.2d 668 (La.App. 3 Cir. 1965), and Opdenwyer v. Brown, 155 La 617, 99 So. 482 (1924).

In Sessum v. Hemperley, supra, our Supreme Court stated:

“An action in boundary may be resorted to when any one of the following three situations exists: (1) where a boundary line has never been established to separate the contiguous estates; (2) where although once established or the estates separated, the physical bounds have been completely eradicated; and (3) where there has been an incorrect fixing of the boundaries. LSA-C.C. Arts. 823, 853.”

The court held that in the first and second instances, the boundary action is im-prescriptible, but that in the third instance, “where there exists actual visible bounds which have been extra judicially placed incorrectly or fixed by the consent of or the active acquiescence of the adjacent landowners,” the action to rectify the alleged error in the location of the boundary must be instituted within ten years, under the penalty of being prescribed under LSA-C. C. art. 853.

Defendant contends that he and his father erected the fence which is in question here in 1933, with the adjacent landowner’s knowledge and acquiescence, that the present suit was instituted by plaintiff to rectify an alleged error in the location of the boundary line, and that under LSA-C. C. art. 853 and Sessum it is barred from maintaining this action by the prescription of ten years. We are unable to agree with that argument.

A survey was never made of the boundary which is in dispute here, and this action thus is not one to rectify an error made by the surveyor, as contemplated in Article 853. Also, the evidence does not show that the fence was “extrajudicially placed incorrectly or fixed by the consent or the active acquiescence of the adjacent landowners,” as stated in Sessum, supra. The evidence does not show that plaintiff or its ancestors in title ever consented to or actively acquiesced in locating the boundary between these estates along the fence which was built in 1933.

The ten year prescription provided in Article 853 of the Civil Code was applied in LaCalle v. Chapman, supra. In that case, however, we found that “the parties mutually agreed and consented that this was the boundary line between their respective properties.” The evidence showed that the parties jointly engaged a surveyor to locate the boundary, they each paid one-half of his fee, they thereupon built their fences on the line which he located, and they maintained those fences for sixteen years. The facts' in LaCalle thus are different from those presented here.

In Huval v. Dupuis, 302 So.2d 636 (La.App. 3 Cir. 1974), we said:

“All these cases agree that regardless of the manner or method by which the lines are established, the ten year prescriptive period is not applied unless it be shown that the adjacent landowners have actively acquiesced in the location of the boundary.”

We believe that the present suit falls under the first of the three classifications of cases as set out in Sessum, supra. It is an action to establish a boundary “where a boundary line has never been established to separate the contiguous estates.” LSA-C.C. art. 823; Arnaud v. Barber, 225 So.2d 656 (La.App. 3 Cir. 1969). Such an action is imprescriptible under Article 825 and under Sessum. We conclude, therefore, that the ten year prescriptive period provided in LSA-C.C. art. 853 is not applicable here.

Even if the case should fall under the third classification pointed out in Ses-sum, and thus subject to the prescription provided in LSA-C.C. art. 852, the evidence does not show that plaintiff or its ancestors in title consented or acquiesced in the location of the boundary along the fence line, with the realization that they were consenting to a boundary at that location. There is no merit, therefore, to defendant’s argument that this action is prescribed under Article 853. Huval v. Dupuis, supra; Girard v. Donlon, 127 So.2d 761 (La.App. 3 Cir. 1961); Winch v. Veazey, 282 So.2d 779 (La.App. 3 Cir. 1973).

Defendant argues further, however, that the acquisitive prescription of thirty years, provided in LSA-C.C. art. 852, is applicable. He contends that he or his ancestors in title have maintained uninterrupted possession of the property lying immediately east of the existing fence for thirty years, and that the trial court thus correctly fixed the boundary along that fence line.

It is immaterial, we believe, whether the possession exercised by defendant or his ancestors in title has or has not been sufficient to establish acquisitive prescription of thirty years. We have held that a boundary action is imprescriptible, and that a party to such an action is entitled to have a court-appointed surveyor inspect the lands and make a proces verbal of his work before judgment fixing the boundary can be rendered. In this case a surveyor has not been appointed, the record does not contain a proces verbal of the work of a surveyor, and the case has never been tried on its merits. Under those circumstances, the trial court was without authority to render a judgment fixing the boundary, regardless of the conclusions it reached relating to the exception of prescription filed by defendant.

The prescription provided in Article 852 of the Civil Code is acquisitive prescription. The sustaining or overruling of a plea of thirty years prescription under that article, whether urged by means of an exception or on the merits, may have some effect on where the boundary ultimately is to be fixed or established by the court. The sustaining of a peremptory exception of prescription in a boundary suit, however, will not defeat the plaintiff’s right to have the boundary fixed or established in accordance with the procedures outlined in the Civil Code and the Code of Civil Procedure.

In Montgomery v. Breaux, 297 So.2d 185 (La.1974), our Supreme Court held that a plea of acquisitive prescription could be raised in a petitory action by means of a peremptory exception. Defendant argues that the same rule should be applied in a boundary suit, and that the plea of thirty years prescription under Article 852 thus was properly raised in this case. It is unnecessary for us to determine that issue here, because regardless of how we may resolve it, we have decided that the trial court did not have authority to render judgment fixing the boundary, since the required procedures were not observed before that judgment was rendered. Also, the court stated in Montgomery that when a peremptory exception of prescription is sustained in a petitory action, all the court can do is to dismiss the action. It cannot render judgment declaring either party to be the legal owner of the property. If the rule applied in Montgomery is applicable to a boundary action, as argued by defendant, the judgment appealed from in the instant suit would have to be amended or reversed, since it purports to fix the boundary line.

Our conclusion is that the judgment appealed from must be reversed, and the case remanded to the trial court for proceedings consistent with the views herein expressed.

We make no findings, and we express no opinion, as to whether defendant has maintained uninterrupted possession of the property in dispute for more than thirty years, since the record does not contain the transcript of the testimony, and we are unable to determine whether the evidence was sufficient to sustain such a plea.

Our conclusion is that the trial court erred in rendering judgment fixing the boundary line in the instant case without the prior appointment of a surveyor, without the filing of a proces verbal of the work of that surveyor, and without a trial of the case on its merits. In view of this conclusion, it logically follows that defendant’s demand for damages for frivolous appeal is denied.

For the reasons herein set out, the judgment appealed from is reversed and the case is remanded to the trial court for further proceedings consistent with the views herein expressed. The costs of this appeal are assessed to defendant-appellee.

REVERSED and REMANDED.


author: CULPEPPER, Judge.

text:
    Cheryl Domingue THERIOT, Plaintiff and Appellee, v. John P. THERIOT, Jr., Defendant and Appellant.
    No. 5721.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Shelton, Miller, Cline & Miller by James M. Miller, Jr., Rayne, Domengeaux & Wright by Jack C. Fruge, Lafayette, for defendant-appellant.
    Davidson, Meaux, Onebane & Donohoe by L. Lane Roy, Lafayette, J. B. Willis, St. Martinville, for plaintiff-appellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   CULPEPPER, Judge.

The defendant father appeals that portion of a judgment of divorce which orders him to pay to the plaintiff mother the sum of $450 per month for the support of their two minor children, who are respectively one and five years of age.

The father’s principal argument is that at the time of the previous judgment of separation from bed and board he was earning a gross of about $42,000 per year as a sales representative for the Xerox Corporation, and he was at that time ordered to pay a total of $450 per month for both alimony pendente lite for his wife and child support. He argues that at the time of the judgment of divorce, one year later, he had changed to the job of supervisor of salesmen and his earnings were about $11,000 per year less. He contends that because of his reduced earnings, and because of the requirements of his job as supervisor that he drive an expensive car, wear expensive clothes and maintain an expensive lifestyle, he is unable to pay $450 per month in child support.

At the conclusion of the trial of the divorce, the district judge dictated into the record lengthy reasons for his decision of the various issues. As to the needs of the children, he stated that he considered both the evidence introduced at the hearing on the suit for separation and the hearing on the suit for divorce, including an affidavit filed by the mother showing the total needs of the mother and the two children to be about $1500 per month. In the judgment of divorce, the trial judge rejected the wife’s claim for permanent alimony on the grounds she is teaching school and earning approximately $650 per month and therefore is not in necessitous circumstances.

Of course, both the father and the mother have an obligation to support and educate their children. LSA-C.C. Article 227; Porter v. Cooley, 293 So.2d 258 (La.App. 3rd Cir. 1974). In the present case, the trial judge concluded that considering the needs of the children and the ability of both the father and the mother to contribute toward payment of these needs, the father should pay $450 per month in child support. We find the record clearly contains a reasonable evidentiary basis for this result.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: PONDER, Judge.

text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., et al.
    No. 11430.
    Court of Appeal of Louisiana, First Circuit.
    March 10, 1977.
    Rehearing Denied April 16, 1977.
    Don T. W. Phelps and Anthony J. Clesi, Baton Rouge, for plaintiff-relator.
    Bart Eaton and D. Bert Garraway, Baton Rouge, for plaintiff-respondent.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This action is before us on a motion to dismiss an appeal as being premature. We issued a show cause order on February 28, 1977, ordering that the parties show cause why the appeal should not be dismissed.

On February 7, 1977, a judgment was signed in favor of plaintiff in conformity with a jury verdict. On February 10,1977, the judge signed a supplemental judgment on two remaining issues in the trial, which were not before the jury. On February 10, 1977, an order granting plaintiff a devolutive appeal was signed by the judge. On February 11,1977, defendants filed a timely motion for a new trial. On February 15, 1977, plaintiff had a supplemental order for appeal signed and posted an appeal bond. At the hearing on the motion for a new trial, the court refused to entertain the motion, holding that it had been divested of jurisdiction by plaintiff’s appeal.

We believe the plaintiff’s appeal is premature and should be dismissed. In Jenkins v. Liberty Life Assurance Company, 198 So.2d 151 (La.App., 1st Cir. 1967), plaintiff timely applied for a new trial; thereafter, defendants filed an appeal bond, thereby perfecting their appeal. The court ruled that the motion for appeal was premature because there was pending before the court a motion for a new trial. See also American National Insurance Company v. Ramon, 204 So.2d 798 (La.App., 4th Cir. 1967); and Billeaud v. Perry, 336 So.2d 539 (La.App., 4th Cir. 1976).

For the above reasons, the plaintiff’s appeal is dismissed at its costs.

APPEAL DISMISSED.


text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., et al.
    No. 11429.
    Court of Appeal of Louisiana, First Circuit.
    March 10, 1977.
    Rehearing Denied April 16, 1977.
    Don T. W. Phelps and Anthony J. Clesi, Baton Rouge, for plaintiff-relator.
    Bart Eaton and D. Bert Garraway, Baton Rouge, for plaintiff-respondent.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

On application of Better Business Bureau of Baton Rouge Area, Inc. and St. Paul Fire and Marine Insurance Company, we issued on March 1,1977, alternate writs of mandamus, certiorari and prohibition commanding the lower court to hear and rule on the pending motion for a new trial or in the alternative the court and Economy Carpets, etc. should show cause why the writ should not be made peremptory. Because of our decision dismissing plaintiff’s appeal in Economy Carpets Manufacturers and Distributors, Inc. v. Better Business Bureau of Baton Rouge Area, Inc., et al., 346 So.2d 727, these writs have become moot. The alternative writs are therefore recalled.


text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., et al.
    No. 11485.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Donald T. W. Phelps and Anthony J. Cle-si, Jr., Baton Rouge, for appellant.
    D. Bert Garraway and Bart Eaton, Baton Rouge, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This court issued an alternative writ on April 6, 1977, ordering the Honorable Melvin A. Shortess, Judge of the 19th Judicial District Court, to grant the motion for appeal filed by the defendants or to show cause why not.

Plaintiff Economy Carpets filed a brief in response to the alternative writ contending that the judgment of the trial court dated January 24,1977, was limited to the issue of defamation, and was not concerned with restraint of trade under LSA-R.S. 51:121 et seq.

LSA-R.S. 51:135 states:

“All interlocutory judgments in the cases affected by this Part, and not otherwise provided for, shall be appealable within five days and shall be heard and determined within twenty days after appeal is lodged, and any interlocutory judgments not appealed, except those rendered during the progress of the trial, shall be final, and shall not be reopened on final appeal. Such appeals shall be on the original papers, on the order on the district judge, if a transcript cannot be prepared in time.”

In our opinion, the judgment of January 24, 1977, falls within the scope of this statute. The issue of defamation is an essential element of the restraint of trade cause of action. The language “affected by this part” is sufficiently broad to demand that the present judgment be appealable within five days.

For the above reasons, the alternative writ issued April 6,1977, is made peremptory and the Honorable Melvin A. Shortess, Judge of the 19th Judicial District Court is ordered to grant the motion for appeal filed herein on January 28, 1977.

WRIT MADE PEREMPTORY.


author: LANDRY, Judge.

text:
    Samuel Richard EXNICIOS v. J. L. MILLER and North River Insurance Company.
    No. 11237.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Roger R. Roy, New Orleans, Hugh B. Exnicios, Jr., Metairie, Liska, Exnicios & Nungesser, New Orleans, for plaintiff.

      Delos R. Johnson, Jr. and G. Wayne Kuhn, Franklinton, for J. L. Miller.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment rejecting his demands for damages for personal injuries sustained by his minor son, Valery P. Exnicios, in an accident in which a motorbike being operated by young Exnicios ran head on into an automobile belonging to defendant J. L. Miller and being operated by his minor daughter, Patricia. Appellant also appeals judgment in favor of Miller for $150.00 on Miller’s recon-ventional demand for damages to his automobile. We affirm.

The accident occurred at approximately 1:30 P.M., May 30, 1971, a clear dry day. The scene of the accident was a curve on a narrow country gravel road near Mt. Hermon, Louisiana. The road, approximately 18 feet wide, allowed passage of vehicles proceeding with care. Traffic had worn two wheel ruts in the center of the highway, one on each side of the centerline, with loose gravel piled in between. Valery Exnicios, 13 years of age, was proceeding southerly on a Yamaha 50 Motorbike. Miss Miller was traveling northerly in her father’s 1950 Chevrolet. Neither driver could see the other approaching because of heavy brush growing beside the highway. Both drivers concede they saw the other only a second or two before impact which admittedly occurred in Miss Miller’s lane of travel.

Miss Miller testified she was proceeding northerly, accompanied by three acquaintances, including Lois Thornton, who occupied the right side of the front seat of her automobile. She was traveling with her car wheels in the ruts and at a speed of about 15 to 20 miles per hour. As she approached the curve she reduced her speed to about 5 to 10 miles per hour and moved to her right. She was negotiating the curve in this manner on her proper side of the road, and as she exited the curve, she suddenly observed the oncoming motorbike about 15 or 20 feet away and traveling directly toward her in the rut on her side of the road. She immediately applied her brakes and attempted to swerve left. Before she could change the direction of her car, the motorbike struck the right front fender and headlight. After impact, her vehicle traveled about 15 or 20 feet before stopping. The motorbike came to rest in the ditch on her side of the highway a few feet behind her car. Miss Miller’s version of the accident was corroborated in large measure by the testimony of Miss Thornton.

Valery Exnicios testified he was proceeding southerly in his proper lane of travel at a speed of about 15 miles per hour. As he entered the curve, he saw the Miller vehicle “swinging wide” around the curve in his lane of travel, about 15 feet away. He estimated the speed of the Miller car at about 30 miles per hour when he first saw it. He stated the Miller car was mostly in the left lane of travel, its right wheels being slightly to the right of the centerline of the road. He did not apply his brakes but attempted to veer to the left which was the only portion of the highway open to him. He explained that he could not veer to his right because of the presence of a deep ditch on that side of the road. He conceded his vehicle was in the left lane of travel, but contends he took to the left lane to avoid the emergency created by Miss Miller’s presence in his lane of travel.

It is settled law that a motorist who is involved in an accident while traveling in the wrong lane of traffic is presumed to be negligent and bears the burden of exculpating himself from such inference. Skinner v. Scott, 238 La. 868, 116 So.2d 696 (1959); Bunch v. Frezier, 239 So.2d 680 (La.App. 1st Cir. 1970); Kierum v. Stonewall, 247 So.2d 166 (La.App. 3rd Cir. 1971).

Appellant points to discrepancies in the testimony of Miss Miller concerning her speed and the distance her vehicle traveled following impact, which appear in her testimony given at trial, and a statement given by her following the accident. Because of these variances, Appellant urges her testimony should be rejected. We initially note that trial of this matter was had almost five years after the accident. More significantly, however, the trial court saw and heard the witnesses and resolved these discrepancies in favor of defendants.

The trial court also rejected Appellant’s contention that Miss Miller created a sudden emergency by traveling in the wrong lane and forcing Valery Exnicios into the left lane in an attempt to avoid an impending collision.

The findings of a trial court predicated upon the evaluation of witness credibility and reasonable inferences drawn therefrom, are not to be disturbed on appeal save upon a showing of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find no manifest error in this instance. Indeed, we find no error whatsoever.

Appellant urges that defendant J. L. Miller should be held liable because he was negligent per se in allowing his 15 year old unlicensed daughter to drive a vehicle upon a public highway.

Violation of a criminal statute, in this case LSA-R.S. 32:52, which requires the driver of a motor vehicle to be licensed, does not constitute negligence and is not actionable unless the violation bears causal relation to the accident sued upon. Jones v. Insurance Company of North America, 303 So.2d 902 (La.App. 1st Cir. 1974). In this instance, there is no showing that Miss Miller was an incompetent or reckless driver to the knowledge of her father. Moreover, we find no error in the trial court’s judgment which exonerated her from fault as regards the accident. Under the circumstances, her failure to have a driver’s license bears no causal relation to the accident.

The judgment is affirmed at Appellant’s cost.

AFFIRMED.