text:
    Casual Donald HAMMOND, Appellant, v. Marlyn Styles MEREDITH, formerly M. S. Hammond, Appellee.
    No. 77-444.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Rehearing Denied Dec. 16, 1977.
    Thomas A. Smith of Smith and Carbonell, and John N. Jenkins, Tampa, for appellant.
    Stephen W. Sessums of Albritton, Ses-sums & Di Dio, Tampa, for appellee.
   PER CURIAM.

The judgment is affirmed, but the determination of arrearage for 1974 must be reduced to $13,800 in order to conform with the provisions of the property settlement agreement.

GRIMES, Acting C. J., and SCHEB and OTT, JJ., concur.


source: Caselaw Access Project

author: RYDER, Judge.

license: Public Domain

text:
    Richard Charles REAVER, a/k/a Renaldo Clayton Weaver, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-505, 77-506.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Pursuant to a plea bargain, appellant pled guilty to two separate charges of breaking and entering with intent to commit a misdemeanor. He was sentenced to concurrent sentences of fifteen years on the first charge (circuit court case no. 75-1552, appeal no. 77-505) and five years on the second charge. He now challenges the legality of the fifteen year sentence. We hold that this sentence was illegal and reverse.

The statute in effect at the time of the commission of the offense, Section 810.-05, Florida Statutes (1973), provides that breaking and entering with intent to commit a misdemeanor is a felony in the third degree. The maximum term of imprisonment for a felony in the third degree is five years. Section 775.082, Florida Statutes.

The trial court also neglected to specify in either sentence the amount of credit time to which appellant is entitled, as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Moreover, the sentences specified that appellant be confined “at hard labor”, which is improper because no existing state statute provides for the imposition of imprisonment at hard labor as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

The judgments are affirmed, but the sentences are vacated and the cases remanded for resentencing of appellant. Appellant is to be present at the resentencing proceeding.

GRIMES, Acting C. J., and SCHEB, J., concur.

      . Section 775.084, Florida Statutes permits pri- or felony offenders to be sentenced to a term of imprisonment of up to ten years for a felony in the third degree. However, there is no indication in the record that the trial court intended to proceed under this statute. Nor does the record include the required finding that imposition of sentence under this section is necessary for the protection of the public.


author: GRIMES, Acting Chief Judge.

text:
    A. G. SPANOS and Dean A. Spanos, Appellants, v. U. S. HOME MORTGAGE CORPORATION, Appellee.
    No. 77-613.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Rehearing Denied Dec. 16, 1977.
    R. Timothy Peters, of Goza, Hall, Peacock & Peters, P.A., Clearwater, for appellants.
    Harold Bowman, Clearwater, for appel-lee.
   GRIMES, Acting Chief Judge.

This is an appeal from a summary judgment against a claim for the anticipatory breach of a lease on the ground that regardless of whether the lessee had breached the lease, the record showed that the lessors had not suffered any damages as a result.

In Kanter v. Safran, 68 So.2d 553 (Fla. 1953), our supreme court approved the following measure of damages for the recovery for the anticipatory breach of a lease:

“ . . . [W]hen a lessee repudiates his contract, a cause of action immediately arises in favor of the lessor for full damages, present and prospective, which were the necessary and direct result of the breach, the measure of which is the difference (reduced to present worth) between the rent fixed in the lease and the present fair rental value of the premises for the remainder of the term, together with such special damages as may have resulted from the breach. This is simply an application to lease contracts of the doctrine of ‘anticipatory breach’ in general contract law . .

The basis for the summary judgment entered in this case was that one of the lessors admitted in his deposition that the rental specified under the subject lease was lower than the present rental value for comparable premises and lower than the rental being charged by the lessors for most other offices in the same building. However, we think the court overlooked some equally significant testimony by the same witness who pointed out that the leased premises had been constructed to meet the exact requirements of the lessee and that there was very little likelihood of finding another tenant who would lease the space without substantial alterations having to be made. He explained that if it is necessary to specially design the office space to meet a lessee’s requirements, the extra expenses would have to be recouped during the term of the lease by increasing the amount of the rental payments.

The present state of the record does not conclusively show that the lessors will be unable to prove any damages. Therefore, the movant failed to carry its burden of demonstrating that no material issues remain for trial. Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Smith v. Avis Rent-A-Car System, Inc., 297 So.2d 841 (Fla. 2d DCA 1974).

REVERSED.

SCHEB and OTT, JJ., concur.


text:
    Richard Lee MORGAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-996, 77-997.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant asks us to reverse an order revoking his probation because the court refused to impanel a jury at the revocation hearing on the question of identity.

Appellant previously entered a plea of guilty to two charges of robbery and was placed on probation for concurrent terms of fifteen years. Subsequently, appellant’s probation supervisor filed an affidavit charging appellant with having violated his probation by committing another robbery.

At the revocation hearing appellant asked the court to impanel a jury on the factual issue of whether he was the person who had committed the robbery. The request was denied. After the taking of testimony, the court determined that appellant had committed the robbery. Appellant’s probation was revoked, and he was sentenced to two consecutive terms of life imprisonment.

In support of his argument that the trial court erred in not impaneling a jury on the question of identity, appellant cites two cases, State v. Cochran, 140 So.2d 597 (Fla. 1962), and Hooks v. State, 207 So.2d 459 (Fla.2d DCA 1968). In Cochran the supreme court observed by way of dictum that in a revocation hearing a defendant might be entitled to a jury trial when he places in issue his identity as the perpetrator of the act allegedly violative of the probation order. In Hooks our court went further and held, as one of several grounds for reversal of a probation revocation order, that the defendant did have a right to a jury trial on the issue of his identity as the person who committed the act for which his probation was sought to be revoked.

Subsequent to our opinion in Hooks, two other district courts of appeal have squarely rejected our view. Bonds v. State, 318 So.2d 521 (Fla.3d DCA 1975); Beasley v. State, 310 So.2d 37 (Fla.4th DCA 1975); Singletary v. State, 290 So.2d 116 (Fla.4th DCA 1974). We now believe it advisable to re-evaluate our position.

At the outset we note that there is very little legal support for the proposition that the defendant is entitled to a jury trial in a revocation proceeding. A few courts have held that a defendant is entitled to a jury determination on identity but only with respect to the question of whether or not he is the same person whom the court originally placed on probation. See State v. Brusenhan, 78 N.M. 764, 438 P.2d 174 (Ct.App. 1968); 24 C.J.S. Criminal Law § 1618(11) (1962). More significantly, the idea of having a jury trial at a probation revocation hearing seems to fly in the face of the whole theory of probation.

A person is placed on probation because even though he has committed a crime, he is believed to be a good risk for rehabilitation. If his subsequent behavior does not live up to the court’s expectations, he is then sent to jail to serve a sentence, not for his present conduct, but for the crime of which he was originally convicted. Since the state has the burden of proof at a revocation proceeding, the question of identity could be placed in issue in practically every case. This would unduly complicate the revocation procedure and would inevitably lead to the diminished use of probation as a sentencing alternative.

While a defendant is entitled to certain due process considerations at his probation revocation proceeding, we do not believe that the right to a jury trial is one of them. Accordingly, we hereby recede from that portion of our opinion in Hooks which suggests a contrary view.

We do agree with appellant that there are imperfections in his sentence. The present sentence does not specify the amount of credit for time served which Section 921.161(1), Florida Statutes (1975) requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra.

The judgment is affirmed, but the case is remanded for the trial court to correct the sentence. The appellant need not be present for this purpose.

SCHEB and RYDER, JJ., concur.


author: McCORD, Chief Judge.

text:
    Eugene CENTERS and Dorothy L. Centers, Appellants, v. The FLORIDA FIRST NATIONAL BANK AT PENSACOLA, Appellee.
    No. DD-163.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1977.

      Charles L. Cetti, of Cetti & McGraw, Pensacola, for appellants.
    Joel M. Cohen, Pensacola, for appellee.
   McCORD, Chief Judge.

Appellee Bank brought a replevin action against appellants to replevin a mobile home financed by appellee. The complaint alleged that payments on the loan had not been made for the months of July, August and September, 1975, and sought an emergency writ of replevin, a restraining order and money judgment and other relief. Based upon an affidavit filed in support of the complaint and without personal service upon appellant, an emergency writ of re-plevin and order to show cause returnable on October 6,1976, was entered. There was no personal service on appellants of the writ and order to show cause. The mobile home was replevied on October 1, 1975, and on October 24,1975, final order was entered without personal service upon appellants of any process in the cause. Thereafter, on July 12, 1976, appellants filed a motion to set aside the order and default and to permit them to file an answer and counterclaim. The motion was sworn to by both appellants and filed prior to hearing thereon. Appellant’s affidavit in support of the motion stated that on September 24, 1975, Dorothy L. Centers had a telephone conversation with the Bank in which the past due payments for July, August and September were discussed; that the Bank agreed to accept the July and August payments and permit the Centers to be late with the September payment; that on the following day, Dorothy L. Centers secured a money order for the July and August payments and mailed it to the Bank where it was received on September 29,1976; that on the following day the same Bank employee with whom Centers had the telephone conversation caused the complaint to be filed and executed a false affidavit in support thereof, falsely reciting that the July and August payments had not been received and that he had demanded return of the mobile home and the Centers planned to remove it beyond the jurisdiction of the court; that at no time were the Centers personally served with any of the suit papers or orders, although the Bank knew that the Centers temporarily had another address and knew how to reach them. The motion recited damages suffered by the Centers as a result of the foregoing and alleged that they had a good defense to the complaint. The court denied appellant’s motion to set aside on two grounds: (1) that the Centers had not acted with reasonable diligence in seeking to set the default and final order aside, and (2) that they failed to tender into the registry of the court the payments accruing between the date of their last payment and the filing of the motion to set aside. It is undisputed that no evidence was taken at the hearing on appellant’s motion. We have considered appellants’ brief but, unfortunately, do not have a presentation of appellee Bank’s contentions on this appeal because it did not favor us with a brief.

We find that the trial court abused its discretion in not setting aside the default and final order and not allowing appellants to file their answer and counterclaim. It affirmatively appears that appellants have a meritorious defense, and it does not appear that they have been guilty of failure to use reasonable diligence in seeking relief; thus, any neglect on their part was excusable. As this Court stated in Metcalf v. Langston, 296 So.2d 81 (Fla. 1 DCA 1974):

“Where a default has been entered and a timely application is made to set aside the default and permit a plea or answer on the merits to be filed, and such plea or answer disclosed upon its face a good and meritorious defense, as a general rule, if there be any reasonable doubt in the matter, it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.”

From the affidavit of appellants filed in support of their motion, it appears that appellee Bank has known the address of the appellants (Sebring Shore Country Club, Sebring, Florida) throughout these proceedings and yet no personal service was made upon them of any process in this cause. Such is unrefuted on this appeal. It does not affirmatively appear anywhere in this record that appellants had personal knowledge of this action prior to the filing of their motion to set aside the default and final order. If this was a wrongful replevin as appellants have alleged in their verified answer, their failure to pay into the registry of the court all payments that would have accrued between the date of their last payment and the filing of their motion to set aside the default and final order was not a proper basis for denial of their motion by the Court.

Reversed and remanded with directions to vacate the default and final order and allow appellants to file their answer and counterclaim.

BOYER and MELVIN, JJ„ concur.


author: PER CURIAM.

text:
    C. A. HOBBS, Jr., Lauryce G. Hobbs and C. A. Hobbs, Jr., Inc., Appellants. v. FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, Appellee.
    No. FF-213.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1977.
    Jere D. McWinn, Jacksonville, for appellants.
    John B. Kent, of Kent, Sears, Durden & Kent, Jacksonville, for appellee.
   PER CURIAM.

Whether the “counterclaims” sought by appellant to be belatedly filed were “permissible” or “compulsory” within the meaning of those terms as used in the Rules of Civil Procedure is a rabbit trail which we do not elect to pursue, nor is it necessary that that issue be now or here resolved. We do find, however, that the summary judgment of foreclosure of real property here appealed was properly entered (insofar as are concerned the points presented on appeal). Accordingly, no prejudicial error having been demonstrated, the said summary final judgment of foreclosure is

AFFIRMED.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


author: RAWLS, Judge.

text:
    Arnold FLICKER, Relator, v. STATE of Florida, Respondent.
    No. GG-126.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1977.
    Arnold Flicker, in pro per.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for respondent.
   RAWLS, Judge.

Flicker seeks prohibition on the ground of being denied a speedy trial. Having found that the suggestion stated a prima facie case, a rule to show cause was issued by this court. We now consider the suggestion along with the state’s return.

Flicker’s initial difficulty with the law was first brought to our attention in Flicker v. State, 296 So.2d 109 (Fla. 1st DCA 1974), wherein we reviewed a factual situation that arose out of a dispute between Flicker and a Mrs. Oyler. The next record in this court involving Flicker was his plea for bail pending trial, Flicker having been indicted for first degree murder — the victim being Mrs. Oyler. On March 8, 1974, pursuant to defense counsel’s motion, Flicker was found by the trial court to be mentally incompetent and unable to assist counsel in preparation of his defense. The trial court committed Flicker to the Division of Mental Health. On September 20,1974, the trial court ordered Flicker returned to Vol-usia County “for further court action”. Pursuant to Flicker’s public defender’s motion that he be examined for the purpose of determining sanity, a psychiatric evaluation was conducted by court-appointed doctors. On January 8, 1975, the trial court, upon finding Flicker to be mentally incompetent and unable to assist counsel, entered its order committing him to the Division of Mental Health. On June 25, 1975, on its own motion, the trial court ordered Flicker to be returned from the Florida State Hospital at Chattahoochee to Volusia County for further Court action. Defense counsel again moved for additional psychiatric examination, which motion was granted. Upon this examination, the trial court found Flicker to be incompetent and unable to assist counsel, and on December 22, 1975, the trial court again committed Flicker to the Division of Mental Health. Thus, it is a matter of record that during the period between March 8, 1974, and December 22, 1975, Flicker’s defense counsel strenuously resisted putting his client on trial by reason of mental incompetency, and, upon this ground, the trial court was of the view that Flicker was mentally incapable of assisting counsel.

An extensive evaluation of Flicker’s mental condition was set out by the staff of Florida State Hospital at Chattahoochee in a report dated March 1, 1976. The report concluded with the finding that since Flicker “does appear to be competent that he be returned to court for further disposition of the charges.” An order entered by the trial court on March 26, 1976, directed that Flicker be returned to Volusia County “upon the charges pending”. Flicker was returned to Volusia County on April 3, 1976.

On a date that cannot be determined from this record, Flicker filed with the trial court, in proper person a “motion to dismiss” which alleged, inter alia: “(1) Arnold Flicker was lodged in Volusia County Jail on April 3, 1976, and his quick and speedy trial never came about. (2) On Sept. 29, 1976 — 180 days has elapsed with no postponements . . . .” On January 26, 1977, the trial court entered an order reciting that Flicker had, in proper person, filed his motion for discharge under the speedy trial rules, and that the court found the matter had not been set for trial since April 3, 1976, because it was questionable whether defendant was competent to stand trial in view of numerous letters the court had received directly from the defendant and other letters discharging his counsel. The trial court again appointed the two medical doctors who had previously examined Flicker, and, upon their opinion that Flicker was mentally incapable of assisting counsel and to stand trial, again committed Flicker to the Division of Mental Health on April 13, 1977.

Of concern to this court is the void in the record between March 26, 1976, and the ensuing 180 days. Flicker did not during this period resist going to trial. Apparently, the trial court was not overly concerned as to his mental condition during the period of time from March 26, 1976, until January 26, 1977, because, insofar as this record reflects, Flicker was incarcerated in the Volusia County Jail awaiting trial. No inquiry was made during this period of time as to his mental capacity to stand trial. However, it is not controverted that although Flicker was removed from the mental hospital facility for a period of more than nine months and held in jail during this period awaiting trial, his adjudication of incompetence had not been removed. Until such adjudication is set aside, a defendant is not competent to stand trial, and thus the speedy trial period is not activated. Emerson v. State, 294 So.2d 721 (Fla. 4th DCA 1974); Rodriguez v. State, 241 So.2d 194 (Fla. 3rd DCA 1970); and Miller v. State, 332 So.2d 65 (Fla.1976).

The rule to show cause is discharged and the suggestion for writ of prohibition is denied.

McCORD, C. J., and SMITH, J., concur.


author: MILLS, Judge,

text:
    William Wesley BOWEN, Appellant, v. Doris Moore BOWEN, Appellee.
    No. HH-193.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1977.

      Charles A. Sorenson and John R. Forbes, of Forbes & Meide, Jacksonville, for appellant.
    John Paul Howard, Jacksonville, for ap-pellee.
   ON MOTION TO QUASH APPEAL

Appellant, William Wesley Bowen, filed herein on September 9, 1977 a notice of appeal reciting that the appeal was filed from an “Order Denying Motion for New Trial (see Notice of Appeal”). Appellee has filed herein a motion to quash the appeal citing, among other authorities, Koch v. State Road Department of Florida, 106 So.2d 426 (Fla.1958). Appellant filed a response to the motion to quash accompanied by a motion for leave to amend his notice of appeal, seeking thereby to appeal from the final judgment rather than the order denying motion for a new trial.

As Judge Mills stated in Hill v. Leon County School Board, 351 So.2d 732 (Fla.1st DCA 1977), opinion filed October 28, 1977, “ * * * We should never become so technical that we obscure the justice of a case. To do so merely brings justice and those who administer it into disrepute. Although we must have rules to guide us in the performance of our duties, we should never ignore common sense in reaching a just result. If we desire respect for the law, and we do, we must first make the law respectable. To do this we must not permit technicalities from preventing justice being done.”

Further, it appears that the Supreme Court of Florida has itself receded from its opinion in Koch v. State Road Department of Florida, supra, thereby rendering it no longer a precedent for application of the doctrine of stare decisis. (See Greyhound Corporation v. Carswell, 181 So.2d 638 (Fla. 1966) and the many subsequent cases appearing in Shepard’s Florida Citations— Cases, citing same)

This and other courts of Florida have also repeatedly held that non-jurisdictional defects in notices of appeal may be cured by amendment where it does not appear that the appellee has either been misled or prejudiced by the defect. (See Greyhound, supra; Burlingham v. Allen, 295 So.2d 684 (Fla.1st DCA 1974); and Hanna v. American International Land Corporation, 289 So.2d 756 (Fla.2nd DCA 1974) Accordingly, it is

ORDERED that appellee’s motion to quash the appeal is denied. Appellant’s motion for permission to amend his notice of appeal is granted and appellant is allowed 15 days from date hereof within which to' file his amended notice. This cause shall thereupon proceed in accordance with the provisions of the Florida Appellate Rules.

By Order of the Court, Acting Chief Judge Tyrie A. Boyer, and Judge Richard W. Ervin, III, Judge E. R. Mills, Jr. dissenting.

MILLS, Judge,

dissenting:

I dissent.

I would grant appellee’s motion to quash appellant’s notice of appeal.

I appreciate the majority’s reliance on my dissent in Hill v. Leon County School Board, 351 So.2d 732 (Fla.1st DCA 1977), opinion filed October 28, 1977. However, the majority erred in failing to rely on my dissent in resolving Hill and is erring here in relying on my dissent in resolving this case. This case is clearly controlled by our Supreme Court’s decision in Koch v. State Road Department of Florida, 106 So.2d 426 (Fla.1958). In Koch the Court stated:

“It appears that this appeal is taken from the order of the trial court denying a motion for a new trial. The correctness of such an order may be assigned ‘for matter and cause of error’ only upon an appeal from the final judgment.

It is, therefore,

Ordered that this appeal be and the same is hereby dismissed for lack of jurisdiction in this Court to entertain it.”

Where our Supreme Court has ruled on a factual situation which is identical to the facts in this case, I feel compelled to follow its decision. Otherwise, what would happen to the doctrine of stare decisis?


author: PER CURIAM. ANSTEAD, Judge,

text:
    David L. BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1776.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY and LETTS, JJ., concur.

ANSTEAD, J., concurs specially.

ANSTEAD, Judge,

concurring specially:

The trial court admitted into evidence, over the defendant’s objection, detailed statements by the investigating police officers as to what was told them by the victim of an attempted sexual battery. The court stated that the testimony was being admitted under the res gestae exception to the hearsay rule. The applicable law is set out in Ellis v. State, 25 Fla. 702, 6 So. 768, 770 (1889):

The female outraged should seek the first opportunity to complain, and the fact that she does complain goes to the jury as evidence, but her detailed statement of the circumstances under which she was outraged cannot be given in evidence on the trial of the case by the party to whom she made the statement. Such testimony [would be] hearsay .

Under this rule the police officers’ testimony would not be admissible. However, the victim herself testified as to the same facts set out in the officers’ testimony and there was overwhelming evidence of the defendant’s guilt. Because of these circumstances I believe the admission of the officers’ testimony constituted harmless error. See Irvin v. State, 66 So.2d 288 (Fla.1953).


author: SANDERS, C. J., and SUMMERS, J.,

text:
    In re SEIZURE OF ALL COPIES OF MAGAZINE ENTITLED “KNAVE”.
    No. 60931.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Gimore’s Newsstand and Leo Mice-li applying for writ of certiorari.

Writ granted. Since the search warrant authorized the seizure of all copies of the specified titles and since the petitioner was not afforded a hearing on the question of obscenity before the warrant issued, the procedure was constitutionally deficient. The search warrant and the blanket seizure are quashed and use of the materials as •evidence is suppressed. See A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed. 809 (1964).

SANDERS, C. J., and SUMMERS, J.,

dissent, being of the opinion that reduction of the seizure to one copy would satisfy constitutional requirements.


author: SUMMERS, J., DIXON, J., MARCUS, J.,

text:
    STATE of Louisiana ex rel. Thomas C. JOYNER, Jr. v. C. Paul PHELPS, Warden, Dept. of Corrections, State of Louisiana.
    No. 60489.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Thomas C. Joyner, Jr., applying for supervisory writs.

Writ denied. As to issue 1: The trial court was in error in refusing to permit the Kaese search warrant and affidavit into evidence. The relator was adversely affected and had standing to contest the validity of the Kaese search. La.Const. Art. 1, Sec. 5 (1974); State v. Culotta, 343 So.2d 977 (La.1976); State v. Herbert, 351 So.2d 434 (La.1977) (docket No. 58,726, opinion on rehearing rendered October 10, 1977). However, on examining the affidavit and warrant, which are attached to the proceedings, we find that the affidavit adequately establishes probable cause for the search. As to issue 2: We are unable to find error in the trial court’s holding that the uncon-tradicted testimony of the prosecutor and of Kaese’s attorney establishes that no plea bargain was entered into before Kaese’s testimony at the trial (or to date), and that the Kaese bargaining discussions commenced only after the relator was convicted.

SUMMERS, J.,

is of the opinion writ should be denied, but does not agree that the trial judge was in error in refusing to permit the Kaese search.

DIXON, J.,

is of the opinion that the affidavit did not connect Kaese with a drug transaction and did not set out probable cause to support a search warrant to search Kaese’s apartment, and would grant.

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

MARCUS, J.,

concurs in the denial of this writ. See my dissenting opinion in State v. Herbert, No. 58,726 (La. Oct. 10, 1977), 351 So.2d 434.


author:
SANDERS, Chief Justice.
      MARCUS, Justice

text:
    Alfred ALEXANDER v. QWIK CHANGE CAR CENTER, INC.
    No. 59298.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Samuel Richard Exnicios, Roger R. Roy, Exnicios & Nungesser, New Orleans, for plaintiff-applicant.
    James F. Mulla, Jr., New Orleans, for defendant-respondent.
   SANDERS, Chief Justice.

The issue here is the liability of an automobile garage operator to an automobile owner for the loss of use of his vehicle converted by the operator to his own use.

In June, 1972, the plaintiff, Alfred Alexander, delivered his used automobile to Qwik Change Car Center, Inc. for repairs. After an inspection of the vehicle, for which plaintiff paid, the garage operator informed plaintiff that he needed a new engine. The operator agreed to install the replacement engine for $55. Plaintiff furnished the engine. At least sixty days elapsed before the work was begun. In the meantime, various parts were stolen from the automobile, which Qwik Change declined to replace. When the engine had been installed, the automobile was still inoperative. Qwik Change informed the plaintiff that an additional charge would be required for parts and labor to put the motor in operating condition. Plaintiff insisted that the agreement for $55 be honored. On October 31, 1972, the automobile owner filed this suit for damages.

Following the filing- of the suit, Qwik Change completed the repairs and began to use the automobile in its business for the delivery of parts.

On November 5, 1973, plaintiff supplemented his originál petition by alleging that Qwik Change had converted the automobile to its own use and sought recovery in tort for the value of the automobile and loss of use.

In 1974, prior to trial, the automobile disappeared while in defendant’s possession.

Both lower courts rejected defendant’s claim of a mechanic’s privilege and dismissed his reconventional demand. That judgment is now final. For our partial review, we adopt the finding of the lower courts that defendant had no justification for retaining the automobile.

The district court awarded plaintiff $1,150 for the value of the automobile and $1,000 for the loss of use. The Court of Appeal affirmed the award for the value of the automobile but rejected the award for loss of use. 340 So.2d 685 (1976). On application of plaintiff, we granted writs to review the judgment insofar as it rejected the award for loss of use. La., 342 So.2d 869 (1977).

In rejecting the award, the Court of Appeal stated:

“But an award of the automobile’s market value is an award for its total value, which includes the value of its use. Thus the award of an additional $1,000 for loss of use is duplicative and must be eliminated.”

If we treat the breached relationship solely as one of compensated deposit, as the Court of Appeal did, or as a contract to repair the automobile, there can be no recovery for loss of use. In the breach of contracts of this type, the plaintiff can recover only pecuniary damages, that is, pecuniary loss or the deprivation of pecuniary gain. LSA-C.C. Arts. 2769, 1934; Meador v. Toyota of Jefferson, Inc., La., 332 So.2d 433 (1976); 23 Loy.L.Rev. 229; 51 Tul.L. Rev. 749. In the present case, the record is barren of any evidence that the plaintiff rented a substitute vehicle during the period that his automobile was retained or incurred any related pecuniary loss. Hence, under this theory, he cannot recover for loss of use. DiGiovanni v. April, La.App., 261 So.2d 360 (1972); Aiken, v. Moran Motor Company, La.App., 165 So.2d 662 (1964).

Plaintiff contends, however, that he alleged a tortious conversion of the automobile and is entitled to recover for the loss of use under Article 2315 of the Louisiana Civil Code regulating delictual responsibility. Plaintiffs contention has merit. Recently, in Meador v. Toyota of Jefferson, Inc., supra, rejecting nonpecuniary damages for the breach of an automobile repair contract, we stated:

“We also deem it worth noting, however fundamental, that unlike the rule which we are required by the Civil Code to apply in this action for breach of contract, damages for mental anguish, aggravation, distress and inconvenience, are recoverable in an action sounding in tort. La.Civil Code art. 2315; 2 M. Planiol, Traite elementaire de droit civil, no. 252 at 152 (11th ed., La.State L.Inst. tranl. 1959); 48 Tul.L.Rev., supra at 1171.”

In tort cases, the courts have frequently awarded damages for mental anguish and inconvenience arising from the loss of use of property. See Grandeson v. International Harvester Credit Corp., 223 La. 504, 66 So.2d 317 (1953); Hamilton v. Travelers Indemnity Company, La.App., 248 So.2d 617 (1971); Gullatt v. Ashland Oil & Ref. Co., La.App., 243 So.2d 820 (1971); 48 Tul.L. Rev. 1171-1172; 51 Tul.L.Rev. 753.

The defendant, however, relying on the holding of the Court of Appeal, contends that an award for loss of use in addition to the value of the automobile would be dupli-cative. Although it cites no jurisprudence in support of this argument, it is apparent that defendant relies upon the decisions holding that one cannot recover for both the full value of a totally destroyed automobile and the loss of use after the destruction. See, e. g., Skinner v. Scott, 238 La. 868, 116 So.2d 696 (1959); Terrebonne v. Toye Bros. Yellow Cab Co., La.App., 64 So.2d 868 (1953).

In Skinner v. Scott, supra, this Court stated:

“One who recovers the full value of a chattel destroyed through the negligence of another cannot recover for the value of the use thereof after the same has been destroyed. The measure of damages in such case is the value of the property destroyed.”

Under the above rule, however, an automobile owner is entitled to an award for loss of use arising from tortious conduct prior to the total loss. See Baremore v. Southern Farm Bureau Casualty & Ins. Co., La.App., 147 So.2d 58 (1962); Adam v. English, La.App., 21 So.2d 633 (1945).

In the present case, the record reflects that the operator converted the automobile to his own use more than a year prior to its loss. Hence, an award for the loss of use for this period is recoverable.

Normally, this Court has measured the damages for loss of use by the rental cost of a substitute vehicle. See Goode v. Hantz, 209 La. 821, 25 So.2d 604 (1946). The award, however, need not be restricted to rental. Nolan v. Liuzza, La.App., 301 So.2d 892 (1974). Much discretion is vested in the trial court. In the present case, there can be no doubt that the plaintiff suffered considerable inconvenience and mental anguish from the loss of use of his automobile prior to its disappearance. The trial judge awarded him $1,000. From the record, we cannot say that he abused his discretion.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated and made the judgment of this Court. All court costs are assessed against the defendant.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

There is no proof of damages for loss of use by the rental cost of a substituted vehicle. In other words, there is no proof of a pecuniary loss. To allow recovery of damages for inconvenience and mental anguish for loss of use of a vehicle is too speculative. Accordingly, I dissent from the majority opinion.


author: CALOGERO, Justice. TATE, Justice,

text:
    STATE of Louisiana v. David SINGLETON.
    No. 59685.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      William J. O’Hara, III, Supervising Atty., Loyola Law School Clinic, New Orleans, Charles Gould, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On the afternoon of October 6, 1976, a policeman stopped a car driven by defendant David Singleton for a traffic citation on Poland Avenue in the City of New Orleans. A passerby, seeing the stopped automobile, recognized the car as one stolen from his stepfather three days before. The passerby gave this information to the ticketing officer who checked the car registration and then arrested defendant Singleton and his passenger, Willard Walker. Walker and Singleton were later tried together on the charge of possession of stolen property, “to-wit: a 1969 Dodge automobile of the value of Six Hundred ($600.00) Dollars.” Walker was acquitted, and Singleton was found guilty as charged. He was sentenced as a third offender under R.S. 15:529.1 to serve fifteen years at hard labor. Singleton appeals his conviction and sentence on the strength of three assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial court committed reversible error when it overruled his motion for severance of the cases against the two defendants. This motion was made on the contention that the defenses of the two defendants would be antagonistic because each planned to claim that the car was actually in the possession of the other. Specifically, it was asserted that each defendant intended to testify that the other had offered him a ride in the car. The trial judge denied the motion for severance.

Defendant argues that the court’s ruling prejudiced him because the presence of the antagonistic defenses and the single trial of the two defendants had a “chilling effect” on his right to testify in his own behalf. On the day of trial the state notified defendants that it had statements made by each defendant and that it intended to use them at trial. Defendant argues that this reality, coupled with the knowledge that his taking the stand to accuse his co-defendant would prompt a similar accusation against himself, unfairly restricted his right to take the stand in his own defense.

Our statutory law requires that “[¡jointly indicted defendants shall be tried jointly unless . . . the court . is satisfied that justice requires a severance.” C.Cr.P. art. 704. There is no more classic situation of the need for a severance than one in which two co-defendants each place the blame for a crime on the other. State v. Thibodeaux, 315 So.2d 769 (La.1975); State v. Birbiglia, 149 La. 4, 88 So. 533 (1921). However, a mere allegation that a co-defendant intends to accuse the other does not automatically require severance. State v. Hunter, 340 So.2d 226 (La.1976). Instead, co-defendants seeking severance must present evidence of actual antagonism. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Medlock, 297 So.2d 190 (La.1974). The trial judge’s decision to disallow a severance under Article 704 is a discretionary one which will not be upset by this Court absent abuse. State v. Thibodeaux, supra; State v. Medlock, supra; State v. Smith, 283 So.2d 470 (La.1973).

The record before us does not contain evidence of actual antagonism of the defenses of these two defendants. No pretrial written motion was filed by either defendant. Rather, on the morning of trial, defendant Walker’s attorney moved for a severance and the trial judge afforded a hearing on the motion. Walker’s attorney argued orally and stated that it would be his client’s position at trial that defendant Singleton possessed the vehicle, Walker merely having accepted a ride from him. Defendant Singleton’s attorney did not formally join in the motion, but he did state: “Each [defendant] claims the other had possession, and gave the other one a ride, or caused the other one to be in the car.” No formal testimony was taken, from the attorneys or witnesses, and no further specifics were offered of the alleged antagonistic defenses. After the judge denied the motion, both attorneys formally objected to the ruling.

Although we believe the severance issue here to be a close one, we cannot say that the trial judge’s disallowance of severance constituted an abuse of discretion. No formal evidence or complementing details were offered at the hearing to substantiate the claims of antagonistic defenses (e. g. there was no sworn testimony at all). Moreover, defendants’ allegations that each merely accepted a ride from the other does not constitute inherently accusatory positions. Were each defendant claiming that the other knowingly possessed the stolen car, then their defenses would have been directly accusatory, making each “defend not only against the state, but also against his co-defendant” and perhaps requiring a severance in the interest of justice. State v. Thibodeaux, supra at 771. Defendants’ allegations here, on the other hand, would neither place guilt directly on the co-defendant nor relieve the asserter of guilt, for each defendant’s acknowledged presence in the car would be some evidence of guilt of his own possession of the stolen vehicle. Under these circumstances, the trial judge did not abuse his discretion in failing to grant defendant Singleton’s motion for severance.

ASSIGNMENT OF ERROR NO. 2

Defendant Singleton moved for production of the voting records of the prospective jurors on the petit jury venire. In the same motion, he also sought production of the computer printout containing prior criminal records of the prospective jurors. The trial judge overruled the motion for production for the reason that the material constituted the “work product” of the district attorney. During the voir dire examination, counsel for defendant did not question any juror as to his or her prior vote as a juror on prior juries. Nor did he ask any question to elicit any juror’s prior criminal record.

This issue has recently been before us several times. In the case of State v. Wright, 344 So.2d 1014 (La.1977), the defendant moved before jury selection for a copy of the district attorney’s list which indicated how prospective jurors had voted in prior jury trials and the type of case heard by each of the prospective jurors. We assumed without deciding that the lists were the work product of the district attorney’s office and held that to discover a work product a litigant must demonstrate that denial of such production would unduly prejudice the preparation of his case or cause him hardship or injustice. We stated that:

“In order to make such a showing he would have been required to demonstrate that he could not practicably obtain information from other sources, and that the state intended to use it in selecting the jury. Had defendant done so, he should have been given the information before voir dire or else allowed to question the prospective jurors on the subject.” 344 So.2d at 1017.

Because defendant made no such showing, however, no reversible error was found in the trial judge’s refusal to demand production of the lists.

In State v. Rey, 351 So.2d 489, handed down October 10, 1977, the Court again found no merit in defendant’s complaint that he had not been given the lists be-causé:

“In the present case, the record indicates that the prosecutor assembled his information on the voting records of prospective jurors from the records in the office of the clerk of court and that the same records are available to any defense attorney. The defendant has failed to demonstrate the required prejudicial effect of the denial of access.”

Moreover, in State v. Holmes, 347 So.2d 221 (La.1977), this Court found defendant’s request for lists premature because voir dire examination had not been conducted and defendant had not shown that he could not get the information by other means (i. e. by questioning jurors on voir dire). And in State v. McGhee, La., 350 So.2d 370, handed down September 19, 1977 the Court found error in the trial judge’s refusal to allow counsel to ask prospective jurors on voir dire what the verdict was in previous juries of which they had been a member. The question whether the meritorious assignment standing alone had sufficient merit to warrant reversal was not reached in light of the fact that the conviction was reversed on two other independent grounds.

In the case now before us, we conclude that defendant Singleton has failed to make a showing that he could not gain the information he requested other than by the state’s production of the lists in question. None of the prospective jurors were questioned about their past jury service nor criminal records on voir dire examination. Under these circumstances, we find no reversible error in the refusal of the trial judge to order production of the lists. C.Cr.P. art. 921. The assignment lacks merit.

ASSIGNMENT OP ERROR NO. 3

Defendant argues that the trial judge wrongly overruled his motion to quash the multiple bill filed against him pursuant to La.R.S. 15:529.1. Defendant contends that one of his prior convictions, namely, that of violating a federal firearms statute, could not have constituted a felony under the laws of the state of Louisiana and that it therefore could not properly have been used to enhance his sentence.

Louisiana Revised Statute 15:529.1 provides that any “person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony” may receive an enhanced sentence. The federal charge, therefore, can only be used to enhance defendant’s sentence if the offense is one which “if committed in this state would be a felony.” See State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), reversed on other grounds 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Johnson, 202 La. 926, 13 So.2d 268 (1943); State v. Brown, 185 La. 855, 171 So. 55 (1937).

Defendant was convicted of possessing a firearm not registered to him in the National Firearms Registration and Transfer Record, a violation of 26 U.S.C. § 5861(d). In 1972, when defendant committed this crime, Louisiana law proscribed, analogously, possession of unregistered firearms through R.S. 40:1783. At that time violation of R.S. 40:1783 was not a felony. Although this state law was amended in 1976 to raise the crime of possession of unregistered firearms to a relative felony, that change does not affect this defendant because the character of a prior offense as a felony or non-felony is determined as of the date of a defendant’s commission of the offense, not as of the date of its utilization by the state in enhancement proceedings. State v. Sawyer, 350 So.2d 611 (La.1977). Therefore, even though the federal crime of which defendant was convicted might arguably have been a crime under Louisiana state law, that counterpart state crime was not then a felony. Under these circumstances, defendant correctly argues that the federal conviction was improperly used to enhance his punishment in the instant prosecution and that the trial court erred in failing to grant his motion to quash the multiple bill.

Decree

For these reasons, defendant’s conviction is affirmed, but his sentence is vacated and the case is remanded to the district court for resentencing.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.

TATE, Justice,

concurring.

While I think severance should have been granted and the voting lists furnished, I am not now prepared to hold that reversible error occurred.

      . In 1972, R.S. 40:1791 provided that the penalty for violation of R.S. 40:1783 was a fine of not less than $100.00 nor more than $1,000.00, and imprisonment for not less than three nor more than twelve months. Therefore, R.S. 40:1783 was not a felony in 1972 when defendant violated the federal statute. See R.S. 14:2; C.Cr.P. art. 933.


author: TATE, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Leo JACKSON.
    No. 59744.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of distribution of heroin, La.R.S. 40:966, and sentenced to life imprisonment. His appeal raises four assignments of error. We find merit in Assignment 1, relating to the improper admission of other-crime evidence, and therefore reverse.

The defendant is charged with distribution of heroin on March 20,1974. This is a crime requiring only general criminal intent; such intent is established by mere proof of voluntary distribution. La.R.S. 40:966; State v. Clark, 338 So.2d 690 (La.1976).

Over objection, the state introduced proof of a similar heroin-distribution offense on March 18, 1974, two days earlier. The state concedes (noting its disagreement with such jurisprudence) that, under clarifying jurisprudence decided subsequent to the ruling below, the other-crime evidence could not be introduced to prove “intent” or “guilty knowledge,” in the absence of a defense that the street sale was done without knowledge of the illegality of the substance. State v. Frederick, 340 So.2d 1353 (La.1976); State v. Slayton, 338 So.2d 694 (La.1976); State v, Clark, 338 So.2d 690 (La.1976).

Nevertheless, the state argues, the other-crime evidence was admissible as proof of “system.”

(1)

This court has held to be admissible, for limited purposes, proof of other crimes exhibiting almost the identical modus operan-di or system, committed in close proximity in time and place. State v. Jones, 332 So.2d 466 (La.1976) (a pre-Prieur trial); State v. Price, 325 So.2d 780 (La.1976); State v. Vince, 305 So.2d 916 (La.1974); State v. Lawrence, 294 So.2d 476 (La.1974).

As the jurisprudence has clarified, the other crime must be distinctively similar in system, State v. Slayton, 338 So.2d 694 (La.1976), State v. Waddles, 336 So.2d 810 (La.1976), State v. Hicks, 301 So.2d 357 (La.1974)—i. e., “so peculiarly distinctive that one must logically say that they [the two crimes] are the work of the same person,” State v. Lee, 340 So.2d 1339, 1345 (concurring opinion of Mr. Justice Dennis) (La.1976). Furthermore, the proof of the other crime as part of the system must be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Ledet, 345 So.2d 474 (La.1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1977); State v. Hicks, 301 So.2d 357 (La.1974); State v. Harrison, 291 So.2d 782 (La.1974).

Of course, as the cited decisions emphasize, not only must the other-crime evidence first be found relevant to a material fact actually at issue, but the probative value must outweigh its prejudicial effect. See State v. Ledet, 345 So.2d 474 (La.1977). In emphasizing the limited purposes for which other-crime evidence may be used, and the limitations upon its use even for such purposes, Ledet summarizes the governing values in the exercise of the trial judge’s limited discretion to admit it, 345 So.2d 478:

“ * * * Because of the substantial risk that the extraneous evidence may detract from the constitutional right to be presumed innocent until proven guilty beyond a reasonable doubt of the crime charged, other crimes can only be admitted after a ‘showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad behavior, and that it serves the actual purpose for which offered.’ ”

(2)

In the present case, the two transactions do not meet these tests.

In the first place, they are no more peculiarly distinctive in nature than are any other street transactions by which an agent purchases a small quantity of illegal drugs from a willing seller. In the second place, the evidence was unduly prejudicial, without overriding probative effect.

More important, however, evidence of the earlier crime of March 18, 1976 serves no probative purpose with regard to an issue of the present (March 20) prosecution — except the prohibited purpose of showing that the accused may have committed the present crime because he is a bad man who committed a similar crime in the past. State v. Frederick, 340 So.2d 1353, 1357 (La.1976).

We must therefore reverse the present conviction and remand for a new trial.

(3)

Before doing so, however, we must note a serious issue raised by Assignment 2, which we do not reach in the present prosecution. By it, the appointed attorney representing the indigent made a substantial showing that he was improperly denied a continuance because, due to his client’s confinement at Angola because of an earlier conviction (see footnote 1), he had been unable to confer with his client to prepare a defense except for a few minutes on two earlier occasions, when the client had been transported from Angola for a court appearance.

However, the client was immediately transported back, without affording the appointed counsel (who was responsible for the defense of several other prosecutions in the same section at the same hearing) a reasonable opportunity to confer with his client to prepare for defense.

Because of the reversal necessitated by the earlier assignment however, we do not reach the merits of Assignment 2.

Decree

For the reasons assigned we reverse the defendant’s conviction and sentence, and we remand this case to the district court for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., and SUMMERS, J., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In order to show intent, evidence is admissible of similar acts. La.R.S. 15:445. Moreover, where the offense is one of system, evidence of similar offenses is admissible for the purpose of showing guilty knowledge and intent. La.R.S. 15:446. In the instant case, I consider that the evidence of the similar offense (March 18, 1974, heroin distribution offense) was admissible to prove knowledge, system, or intent. Accordingly, I respectfully dissent.

      . The record reflects that the defendant had earlier been convicted of the March 18 offense and sentenced to life imprisonment.


author: DIXON, Justice.

text:
    Edwin E. FOSTER, Jr. v. Joseph M. HAMPTON et al.
    No. 59768.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Michael R. Connelly, Baton Rouge, for plaintiff-applicant.
    David W. Robinson, Trial Atty., Watson, Blanche, Wilson & Posner, Paul Marks, Jr., Dale, Owen, Richardson, Taylor & Mathews, William H. Cooper, Jr., Beychok, Cooper & Pierson, Joseph P. Keogh, Parish Atty., Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, for defendants-respondents.
   DIXON, Justice.

This case involves the liability of a sheriff for the tortious acts of his deputies, and the liability of the parish where the sheriffs department is located.

Edwin E. Foster, Jr. filed a petition for damages alleging he was injured when Deputy Sheriff Joseph M. Hampton, driving an East Baton Rouge Sheriff’s Department vehicle and while acting in his official capacity, struck Foster’s motorcycle while Hampton was making an illegal left turn. He cited as defendants the deputy sheriff, the sheriff of East Baton Rouge Parish and Aetna Casualty and Surety Company, their liability insurer, basing his claim on a theory of respondeat superior.

The sheriff filed a peremptory exception of no cause of action alleging that “under R.S. 33:1433 and the jurisprudence of the State of Louisiana, liability does not attach to a sheriff under the doctrine of responde-at superior or under the doctrine of master and servant or principal and agent for an alleged wrongful act of a deputy sheriff . ” The trial court sustained the peremptory exception and dismissed Foster’s suit as against the sheriff.

Foster obtained leave of court to supplement and amend his petition by adding East Baton Rouge Parish and its liability insurer, The Fidelity and Casualty Company of New York, as defendants. The parish then filed a peremptory exception of no cause of action on the basis that the sheriff of the parish is a constitutional elective public official and that the parish is not legally responsible for the actions of the sheriff or his deputies; the exception was sustained and suit against the parish was dismissed. Subsequently a peremptory exception was filed by Fidelity and Casualty alleging that since the court had determined there was no liability on the part of the parish, there could be no liability by the insurer; this exception was likewise sustained.

Foster appealed the judgments dismissing the sheriff, the parish and Fidelity and Casualty; all the appeals were consolidated.

The Court of Appeal affirmed the judgments of the trial court maintaining the exceptions and dismissing Foster’s suit against those defendants. Foster v. Hampton, 343 So.2d 219 (La.App. 1st Cir. 1977).

Foster first contends that the Court of Appeal erred in not finding that Deputy Hampton was engaged in the performance of an “official duty” which, he argues, would subject the sheriff to liability under the provisions of R.S. 33:1433.

R.S. 33:1433 reads, in pertinent part, as follows:

No sheriff of any parish of this state, nor his sureties, shall be liable for any act or tort committed by one of his deputies, or by any person commissioned as deputy sheriff by him, beyond the amount of the bond or limits of liability in insurance furnished by said deputy sheriff, unless said deputy sheriff in the commission of the said act or tort, acts in compliance with a direct order of, and in the personal presence of, the said sheriff, at the time the act or tort is committed.” (Emphasis added).

Although the above quoted language appeared in the statute in 1950, La.Acts 1950, No. 426, § l, no cases have yet relied on it as authority in determining the liability of a sheriff for the acts of his deputy.

The jurisprudence on the question of a sheriff’s liability for the wrongful acts of his deputy seems, for the most part, to have its genesis in the common law rather than Louisiana statutory law. The inquiry in those cases is based on a distinction between the official and nonofficial acts of the deputies, subjecting the sheriff to liability only for those acts of the deputy while engaged in the performance of an official duty or while acting in his official capacity.

This court in Sanders v. Humphries, 143 La. 43, 78 So. 168, 169 (1918), stated that:

“ . . . [Njeither the sheriff nor the surety on his official bond is responsible for a wrongful act of a deputy sheriff unless it was done in violation or in an unfaithful or improper performance of an official duty.”

Then in Gray v. DeBretton 192 La. 628, 188 So. 722 (1939), the court explained the nature of the special relationship between a sheriff and his deputy, relying on common law authorities:

“In discussing this point it must be borne in mind that no liability attaches to the defendant sheriff under the doctrine of respondeat superior, or under the doctrine of master and servant and principal and agent. The relation between a sheriff and his deputy is an official and not a private relation. The deputy is not a representative of the sheriff in his individual capacity, but he is a public officer whose authority and duty are regulated by law. As to the public, whose servants these officers are, the acts and omissions of a deputy sheriff are the acts and omissions of the sheriff himself. So far as the responsibilities 'of the office are concerned, the sheriff is liable for the acts and omissions both of himself and his deputy. Rich v. Graybar Electric Co., 125 Tex. 470, 84 S.W.2d 708, 102 A.L.R. 171, and annotations 102 A.L.R. 182, ix.” 192 La. at 634-35, 188 So. at 724.

Gray has since been cited in virtually every case on the subject of a sheriff’s liability for the wrongs of his deputy; even the cases arising after the 1950 amendment to R.S. 33:1433 rely on Gray and fail to base their holding on an interpretation of R.S. 33:1433.

Foster’s argument that Deputy Hampton was acting in his official capacity when Foster was injured has already been considered and rejected by the courts of this State. In Gray, supra, a deputy sheriff, while transporting a prisoner to the sheriff’s office, struck two pedestrians. The court found that although the deputy was engaged in an official act in conveying the prisoner, the running of the automobile into plaintiffs was not done by color of or by virtue of his office, and, therefore, no liability could be imposed upon the sheriff and his surety. The court stated:

“ . . .It would seem that if the deputy violated any duty that he owed to plaintiff and his children, the duty violated was not an official duty but was an individual and private duty owed by the deputy to all pedestrians upon the public highway.” 192 La. at 639, 188 So. at 726.

The court relied, in part, upon McVea v. Day, 6 La.App. 382, 385 (1st Cir. 1927) wherein it was held that “ . . .in traveling or going to a place where an official act is to be performed, the manner in which a deputy travels, is not part of the official act.” See also Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La.App. 4th Cir. 1970). Therefore, Hampton was not engaged in an “official” act to which the sheriff could be found liable under the jurisprudence.

Foster is wrong in his contention that a finding that Deputy Hampton was engaged in the performance of an official duty would subject the sheriff to liability under the provisions of R.S. 33:1433. R.S. 33:1433 specifically provides that no liability attaches to the sheriff beyond the bond or liability insurance furnished by the deputy unless the act or tort of the deputy was “in compliance with a direct order of and in the personal presence of, the said sheriff, at the time the act or tort is committed.” (Emphasis added). The statute contemplates personal liability of the sheriff for those acts he personally controls; for such acts the legislature has determined that the sheriff should be answerable. The sheriff is subject to liability up to the limits of the bond or liability insurance furnished by the deputy for the official acts of the deputy which he does not directly control. No allegation is made by Foster that Hampton was acting in compliance with a direct order of and in the personal presence of the sheriff. Therefore, the sheriff cannot be held liable under the provisions of R.S. 33:1433.

As previously noted, the court in Gray adopted the common law idea that the relationship between the sheriff and his deputy is not one of master and servant or principal and agent; therefore, the doctrine of respondeat superior is not applicable. However, it is well settled that the deputy sheriff is an officer of the state. Williams v. Guerre, 182 La. 745, 162 So. 609 (1935); State v. Jones, 181 La. 390, 159 So. 594 (1935); State v. Titus, 152 La. 1011, 1016, 95 So. 106, 107 (1922). The State, then, may be considered the deputy sheriff’s “employer.” Although the doctrine of respondeat superior might be available to hold the State vicariously liable for the negligent torts of its employee in the course and scope of his employment, the State is not a party to this proceeding.

Foster next makes the argument that R.S. 33:1433 grants immunity to the sheriff, and, therefore, the statute is no longer effective, due to Art. 12, § 10(A) of the Louisiana Constitution of 1974.

Art. 12, § 10(A) provides:

“Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

The First Circuit, in responding to this argument, stated:

“There is no merit in the appellant’s position that the protection granted to sheriffs is a governmental immunity, which was abolished by the Louisiana Constitution of 1974, article 12, section 10(A). Sheriffs never had immunity from suit. Their protection against liability is merely a legislative restriction to liability for breach of an official duty. . . . ” 343 So.2d at 221.

We agree with the appellate court’s conclusion that R.S. 33:1433 does not provide a governmental immunity to the sheriff. The principle that a sheriff is liable only for the official acts of his deputy is subscribed to in jurisdictions throughout the country, and nowhere is the theory of sovereign immunity relied upon in protecting the sheriff from liability. R.S. 33:1433 limits the sheriff’s individual liability to acts over which he has direct control. The statute has the additional effect of allowing recovery against the sheriff for acts of the deputy while engaged in the performance of official duties only up to the amount of bond or liability insurance provided by the deputy. The statute was intended to recognize the special relationship between the sheriff and his deputy, which is not the traditional employer-employee relationship. Only when the sheriff personally directs the deputy in a wrongful act does he create the kind of private relationship that would subject him to individual liability. Art. 12, § 10(A), therefore, has no effect upon the liability of a sheriff for a deputy’s wrongful acts while performing an official duty.

Foster makes further constitutional attacks upon R.S. 33:1433. He contends his rights to due process and equal protection, under Art. 1, §§ 2, 3 and 22 of the Louisiana Constitution of 1974, have been violated in being denied recovery against the sheriff. These sections read as follows:

§ 2. “No person shall be deprived of life, liberty, or property, except by due process of law.”
§ 3. “No person shall be denied the equal protection of the laws . . . ”
§ 22. “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to his person, property, reputation, or other rights.”

Foster is correct in his allegation that the right to recover damages for injury is a property right which cannot be denied without due process of law. Angle v. The Chicago, St, Paul, Minneapolis and Omaha Railway Co., 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55 (1893). But there has been no denial of due process or access to the courts here. Foster has a remedy against the deputy sheriff and may further be able to recover against the State, the proper party to sue as “employer” of Hampton in this instance.

Regarding his equal protection claim, so long as the law applies to all persons in the same circumstances and conditions in a like fashion, the requirements of equal protection are met. See State of Louisiana ex rel. Francis v. Resweber, 67 S.Ct. 374, 329 U.S. 459, 91 L.Ed. 422 (1947), rehearing denied, 67 S.Ct. 673, 330 U.S. 853, 91 L.Ed. 1295; State v. Saia, 212 La. 868, 33 So.2d 665 (1948).

In a case where similar attacks to those in the instant case were made upon the 1968 amendment to Civil Code article 1764, making the implied warranty of merchantability and fitness not applicable to contracts for the sale of human blood, plasma, tissue or organs from blood banks or reservoirs, the United States Court of Appeals for the Fifth Circuit stated:

“For over 50 years, the Louisiana courts have recognized the validity of legislative regulation of causes of'action, including replacement and even extinction, that one person may have against another for personal injuries. Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919). The entire scheme of workmen’s compensation is grounded on the acknowledgment of this power. Id. Other state courts have repeated this acknowledgment over the years in other areas. See, e. g., Paul v. Nolen, 166 So. 509, 511 (La.App.1936).
The article is no less valid because it is explicitly directed at the suppliers of blood and blood components. Article 4, § 4 of the Louisiana Constitution [Art. 3, § 12 of the Louisiana Constitution of 1974] prohibits the granting of special immunity for ‘any corporation, association or individual.’ The article has been narrowly construed by the Louisiana courts, which have held that ‘A statute which is applicable to all persons under like circumstances and does not subject any individual to an arbitrary exercise of power does not violate the due process or equal protection clauses of the state and federal constitutions.’ Standard Homestead Assn. v. Horvath, 205 La. 520, 17 So.2d 811, 813 (1944). Thus, as long as privilege or immunity ‘operates equally and fairly to those who engage in like transactions’ and ‘affects alike all persons pursuing the same business under the same conditions,’ the Louisiana Constitution is satisfied. Id. at 814. See, also, Succession of Vincent, 229 So.2d 449 (La.App., 1969) . . . ” Heirs of Fruge v. Blood Services, 506 F.2d 841, 848-49 (5th Cir. 1975).

The Court of Appeal was correct in its finding that no error was committed by the trial court in sustaining the exceptions of no cause of action by the parish and its liability insurer. We adopt the appellate court’s opinion in this regard as our own:

“The Court is of the opinion that as a matter of law, East Baton Rouge Parish exercises no power or discretion in the functioning independently of the governing body of the parish. La.Const. of 1974, art. 5, sec. 27. There can be no vicarious liability on the part of the parish for the acts of the sheriff or his deputies. See Nielson v. Jefferson Parish Sheriff’s Office, supra, at page 94 [242 So.2d 91 (La.App. 4th Cir. 1970)].
The appellant’s argument that deputy sheriffs must be considered civil service employees of the City Parish government in East Baton Rouge Parish finds no support in the law. Our Supreme Court, in the case of Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (La.1967), acknowledges the unique metropolitan form of the City of Baton Rouge and the Parish of East Baton Rouge and specifically calls attention to the fact that the office of the parish sheriff functions ‘ . . . entirely separate therefrom, the limits of the city and parish not being co-extensive.’
With regard to the exception filed by the parish’s liability insurer, we also find that the trial court’s ruling was correct, because where there is no liability on the part of the Parish of East Baton Rouge, the insured, there can be no liability on the part of the insurer under its policy. See Smith v. Kelly Labor Service, 239 So.2d 685 (La.App. 4th Cir. 1970), writ ref. 257 La. 173, 241 So.2d 531 (La., 1970).” 343 So.2d at 221.

For the reasons assigned, we affirm the rulings of the trial court and appellate court sustaining exceptions of no cause of action by Sheriff J. A1 Amiss, the Parish of East Baton Rouge, and its liability insurer, The Fidelity and Casualty Company of New York, and remand for further proceedings not inconsistent with this opinion.

SANDERS, C. J., and SUMMERS, J., concur in result.

      . The statute was again amended by La.Acts 1968, No. 45, § 1 and La.Acts 1972, No. 722, § 1 the only significant change relevant to our inquiry being addition of the language “or limits of liability insurance.”

      . Before the 1950 amendment, the sheriff appeared to be subject to more extensive liability. Prior to 1950, R.S. 33:1433 provided:'
      “. . . The sheriff of each parish, the Orleans Parish civil sheriff, and the Orleans Parish criminal sheriff are responsible for the deputies whom they appoint . .
      The forerunner to R.S. 33:1433, § 3542 of the Revised Statutes of 1870, as amended in 1940, stated that the “Sheriff of each parish . remains responsible for them [the deputies they appoint].”
      Similar language appeared in article 764 of the Code of Practice before its repeal by La.Acts 1934 (3rd E.S.), No. 27, § 2:
      “Every sheriff may, with the approbation of the court in which he exercises his duties, name as many deputies as he thinks fit, but he remains responsible for them . . . ”
      This court in 1887 recognized the civil responsibility of the sheriff for all loss and damage caused by the deputy’s misconduct or delinquency under Code of Practice, art. 764, but denied that he would also be subject to criminal responsibility. State v. Budd, 39 La.Ann. 232, 1 So. 453 (1887). Although the court did not make a distinction between the official or-unofficial acts of the deputy, the act of serving a writ of attachment would clearly constitute an official act.

      . In one case the official vs. nonofficial distinction was recognized in interpretation of Code of Practice, art. 764 and R.S. § 2594 of 1870. Grabenheimer v. Budd, 40 La.Ann. 107, 3 So. 724 (1888). The court stated:
      “. . . The acts performed by the deputy in his official capacity are the acts of the sheriff, . . . It is part of a sheriffs duty to have his deputies under proper control, and to see that they honestly and impartially perform their official duties.” 3 So. at 725.

      . For a more recent collection of the common law cases see 60 A.L.R.2d 873 and 15 A.L.R.3d 1189.

      . See, e. g., Polizzi v. Trist, 154 So. 2d 84 (La.App. 4th Cir. 1963); Jackson v. Steen, 92 So.2d 280 (La.App. 2d Cir. 1957); Robertson v. Palmer, 55 So.2d 68 (La.App. 1st Cir. 1951). Andry v. Parish of Orleans, 309 So.2d 814 (La.App. 4th Cir. 1975), was he only case found in which R.S. 33:1433 was even mentioned. The court reversed the trial court’s grant of an exception of no cause of action to the sheriff based upon a finding that a deputy’s use of excessive force in apprehension of an escaping prisoner could constitute a breach of an official duty. However, in a footnote the court stated that the trial court could have granted a motion to strike plaintiffs demand against the sheriff individually under R.S. 33:1433.

      . Foster, in his supplemental and amended petition, alleged that:
      “Defendant Joseph M. Hampton was on duty at the time of the accident acting in his official capacity as a deputy sheriff in the Civil Division of the East Baton Rouge Sheriff’s Department. Therefore Sheriff J. A1 Amiss and the Parish of East Baton Rouge are liable under the doctrine of respondeat superior as employers liable for the torts of their employees while the employees are acting in the course and scope of their employment.”
      In brief he contends that upon a hearing on the merits it will be shown that “Deputy Hampton is a civil deputy sheriff who was in route in an official sheriffs office vehicle to serve official documents when the accident occurred.” It appears that Foster’s petition did not set forth facts that would show the alleged wrongful act was committed while the deputy was in the performance of an official duty and resulted from the wrongful manner in which it was performed, as required by Gray v. DeBretton, 192 La. 628, 636, 188 So. 722, 725 (1939).

      . See R.S. 13:5101, et seq. for the procedure to be followed in suing the state, a state agency, or political subdivision.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. George DENNEY.
    No. 59804.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Clifford E. Cardone, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

George Denney was charged by bill of information with committing an aggravated battery on Jules Gettridge by throwing an ignited flammable liquid upon his person. After a trial by jury defendant was found guilty as charged, and sentenced to serve five years at hard labor. He now appeals to this Court for a reversal of his conviction based on seven assignments of error, consolidated into three arguments. Seven other assignments of error have not been briefed, and are therefore considered abandoned. See State v. Jones, 340 So.2d 563 (La.1976).

The facts of the case are generally as follows: On March 28, 1975, at about 11:00 p.m. defendant George Denney entered the Jackson Playhouse Bar at 5021 N. Galvez Street in New Orleans. Shortly thereafter the defendant approached one Jules Get-tridge and threw a cup of flammable liquid onto the latter’s back as he sat at the bar, causing Gettridge’s clothes to ignite and causing Gettridge to suffer burns on fifty percent of his body. Gettridge and a barmaid, Jenny Porter, testified at the defendant’s trial that the cup of flammable liquid was in flames when Denney threw it on Gettridge; Denney, who testified in his own behalf, stated that he threw the liquid on Gettridge, and then when Gettridge came after him, ignited his cigarette lighter in self-defense, and Gettridge’s clothing caught fire. Testimony revealed that Den-ney was apparently jealous of the relationship which existed between the barmaid, Jenny Porter, and Gettridge.

ASSIGNMENTS OF ERROR NOS. 3, 5, 8 AND 9

In these four assignments of error defendant contends that the trial court erred in admitting, over defense counsel’s objection, evidence by the state relative to the burn injuries received by the alleged victim of the defendant. Defendant alleges that the evidence, introduced in the form of testimony by police officers and the victim and by the victim’s removal of his shirt in the courtroom, was inflammatory in nature and thus should have been excluded.

We find no merit to these assignments. The evidence complained of by defendant was clearly probative as the state had the burden of proving that the liquid was a dangerous substance. La. R.S. 14:34. We conclude, therefore, that the probative value of this evidence outweighed any prejudicial effect which it might have had. State v. Trass, 347 So.2d 1156 (La.1977); State v. Redwine, 337 So.2d 1041 (La.1976); State v. Larue, 324 So.2d 384 (La.1975).

ASSIGNMENT OF ERROR NO. 4

By this assignment defendant alleges that the trial court erred when it sustained a state objection to the detailed nature of defense counsel’s opening statement. The objection was twice sustained. Only after the second ruling was counsel’s statement curtailed. We also find no merit in this assignment.

Generally, the scope of counsel’s opening statement is left to the sound discretion of the trial judge and in the absence of an abuse of discretion this Court will not reverse a lower court’s ruling. State v. Kinchen, 342 So.2d 174 (La.1977). Our review of the opening statement of defense counsel discloses that counsel was generally afforded wide latitude by the trial court. In fact the statement as a whole was exhaustive in nature. We therefore find that the trial court did not abuse its discretion in sustaining the state’s objection.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 12

Defendant contends in these assignments that the trial court erred when it refused to allow defense counsel to place the victim’s character in issue or to present evidence of previous hostile demonstration. We find no merit in these assignments.

La. R.S. 15:482 provides:

In the absence of evidence of hostile demonstration, or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.

It is well established in our jurisprudence that the defendant must show that the “overt act” had taken place at the time of the incident in question. In our recent decision in State v. Brent, 347 So.2d 1112, 1116 (La.1977) we made the following explanation of the necessary prerequisites to the introduction of evidence of the victim’s character and previous hostile demonstration:

Under our statutes and jurisprudence, such evidence is not admissible until defendant has made a showing with appreciable evidence that the victim made a hostile demonstration or overt act against him at the time of the incident which would have manifested to a reasonable person that he was in danger of grave bodily harm or of being killed. La. R.S. 15:482; State v. King, 347 So.2d 1108 (La.1977); State v. James, 339 So.2d 741 (La.1976); State v. Lee, 331 So.2d 455 (La.1976). Once that showing has been made, then the evidence can be brought to the attention of the jury which can then serve as fact-finder and believe or disbelieve any or all of this evidence, (emphasis provided)

In the present case defendant attempted to introduce testimony relative to two occurrences which had taken. place approximately one year prior to the incident which forms the basis of the present charge against the defendant. The trial court properly excluded such testimony as defendant had not proved at this time (nor did he at any other time in the trial) the commission of an overt act on the part of the victim at or even near the time of the incident. Defense counsel contends that these acts which occurred approximately one year prior to the incident satisfy our statutory and jurisprudential requirements. On the contrary the hostile act of the victim must occur at the time of the incident. The accused cannot otherwise reasonably have had an apprehension of immediate danger.

This assignment lacks merit.

Decree

For the above reasons the conviction and sentence of the defendant George Denney is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Matthew HENDERSON.
    No. 59834.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Robert J. Zibilich, 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 Matthew Henderson was tried and convicted for the second degree murder of Barbara Harrison, a four (4) year old child. He was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. He appeals to this Court relying on three assignments of error and urging reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

In defendant’s first assignment of error he alleges that the trial court erred when it allowed an expert in the field of forensic dentistry to testify, over objection, that the forcible extraction of teeth (akin to what had likely been the young victim’s fate in this case) was in keeping with an activity of which he was cognizant: preventing victim identification in homicide cases. Since the witness had been duly and amply qualified as an expert in the field of forensic dentistry, this opinion testimony was more than likely permissible. However, even if such testimony were not permissible for the reason that the question was not one precisely within the field of the witness’ expertise, we find no prejudicial error, certainly not of the magnitude warranting reversal of defendant’s conviction, in allowing this testimony.

ASSIGNMENT OF ERROR NO. 2

Defendant contends in his second assignment of error that the trial court erred by allowing a particular photograph of the victim to be introduced into evidence over defense objection. The photograph, taken some time before the day on which the victim met her death, showed her wearing a gold earring. This earring was purportedly the same earring that was later recovered from the plumbing system in defendant’s apartment. The basis of defendant’s objection was that the photograph was unnecessary, inflammatory and prejudicial “by its very nature.” There is no conceivable merit to this complaint. The photograph was highly relevant. It tended to place the victim in the defendant’s apartment prior to her disappearance.

ASSIGNMENT OF ERROR NO. 3

Defendant’s final contention that a comment in the district attorney’s closing argument was directed at the defendant’s not having testified is equally without merit. The district attorney simply reviewed certain physical evidence and related that it was unrefuted and unrebutted. The comment was neither a direct nor an indirect reference to “the failure of the defendant to testify in his own defense.” La.C.Cr.Pro. art. 770; State v. Smith, 327 So.2d 355 (La.1976); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972).

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

AFFIRMED.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Larry FOWLKES.
    No. 59843.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Tommy C. Rutledge, DeQuincy, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Larry Fowlkes was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve forty years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his challenge for cause of prospective juror B. G. Young.

Defendant and Phil Lemelle were jointly charged by bill of information with the armed robbery. On defendant’s motion, the court ordered a severance of the indictment. Accordingly, defendant was separately tried. During voir dire examination of prospective jurors for defendant’s trial, it was revealed that Mr. Young had been peremptorily challenged as a prospective juror for the trial of Phil Lemelle on an unrelated armed robbery earlier in the day in another section of court. Defendant challenged Mr. Young for cause. The trial judge denied the challenge. Defendant argues that his challenge for cause should have been granted since Mr. Young was aware that Phil Lemelle was being tried for an armed robbery and, further, that the name of Phil Lemelle was used repeatedly throughout defendant’s trial. Defendant exhausted his peremptory challenges before completion of the jury panel.

La.Code Crim.P. art. 797 provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; .

The mere fact that Mr. Young knew that Phil Lemelle had been charged with an armed robbery does not of itself render him partial. No showing was made during voir dire that Mr. Young could not render an impartial verdict according to the law and the evidence. Absent such a showing, we are unable to say that the trial judge abused his discretion in refusing defendant’s challenge for cause.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 and 4

Defendant contends the trial court erred in admitting in evidence a written confession made by him while under police interrogation and also in allowing the state to read the confession to the jury during closing argument. Defendant argues that the state failed to prove that the confession was freely and voluntarily made and that the voluntary nature of the confession was vitiated by the fact that defendant was interrogated continuously for eight hours, culminating in a written confession which differed from his earlier oral statements. Pri- or to trial, no motion to suppress the written confession was filed by defendant.

During trial, outside the presence of the jury, a suppression hearing was conducted during which the state offered the testimony of Sheriff Deputies Gary Keller and Charles Deggans. Both deputies testified that defendant was initially arrested by the city police about midnight, January 24, 1975, and was taken to the Calcasieu Parish jail where he was seen by them shortly after his arrival. They further testified that defendant was advised of the charges against him and of his Miranda rights. Questioning began about 1:00 a.m. and some oral statements were obtained. Defendant confessed to the robbery but did not reveal the details at this time. Defendant was then taken to participate in a lineup. Deputy Deggans testified that two lineups were being conducted at that time and the process was not completed until approximately 4:00 a.m. After the lineup, Deputies Keller and Deggans again questioned defendant, who made some more oral statements at 4:45 a.m. At 7:12 a.m., after having been again advised of his Miranda rights and executing a waiver of rights form, defendant made a written confession. The written confession indicates that it was given in order to “correct” the oral statements given at 4:45 a.m. Both deputies explained that “correct” simply means that more details were given in the written confession than in the oral statements. Deputy Keller testified that defendant himself requested adding the details because he wanted to be completely honest. Both deputies testified that defendant appeared to be coherent and not overly tired during the interrogation and that all statements were freely and voluntarily made after having been fully advised of his Miranda rights. They specifically denied use of any coercive tactics, threats or promises to induce defendant to confess. Deputy Deggans estimated that the total period of questioning was only about two and a half hours.

Defendant did not testify at the suppression hearing nor did he produce any evidence. The trial judge ruled that the written confession was admissible in evidence.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453; State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Cotton, 341 So.2d 355 (La.1976). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Adams, supra; State v. Ross, supra; State v. Demourelle, 332 So.2d 752 (La.1976); State v. Sims, 310 So.2d 587 (La.1975).

In the instant case, the police officers testified that the confession was freely and voluntarily made by defendant after being fully advised of his Miranda rights. Defendant’s allegations that the voluntary nature of the confession was vitiated by the fact that defendant was interrogated continuously for eight hours, culminating in a written confession which differed from his earlier oral statements, are not supported by the record. On the contrary, the testimony of the police officers indicates that defendant was questioned only about two and a half hours, that defendant was coherent and not overly tired during the interrogation, and that the written confession was consistent with defendant’s prior oral statements.

After reviewing the record, we are convinced, as was the trial judge, that the state has satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been fully advised of his Miranda rights. Accordingly, the trial judge did not err in admitting the confession in evidence.

Defendant’s contention that the trial court erred in permitting the state to read the confession to the jury during closing argument is equally without merit. At trial, defendant based his objection on the allegation that the jury was already familiar with the contents of the confession. For the first time in brief, defendant argues that the confession should not have been read to the jury because it was not freely and voluntarily made.

La.Code Crim.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless the defendant has made known to the court his objection and the grounds therefor. A new basis for an objection cannot be raised for the first time on appeal. State v. Williams, 343 So.2d 1026 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976). In any event, La.Code Crim.P. art. 774 provides in pertinent part:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. (Emphasis added.)

Having found that the written confession was properly admitted in evidence, the trial court did not err in allowing the state to read the confession to the jury during closing argument.

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

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial court erred in denying defendant’s motion for a mistrial on the ground that testimony by a state’s witness referred to inadmissible evidence of another crime and in failing to admonish the jury to disregard the remark.

At trial, the state asked a police officer to describe the circumstances surrounding defendant’s arrest. The witness responded: “Yes, there had been an armed robbery report put out, Earl’s Superette, about 10:30 P. M., that night, the night of January 23rd.” Defendant immediately objected and moved for a mistrial. The trial court denied the motion. Defendant did not request an admonition.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). First, a police officer is not a “court official”; therefore, article 770 does not apply. Rather, article 771 of the Code of Criminal Procedure would be the applicable article. State v. Hardy, 344 So.2d 1018 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Clark, 288 So.2d 612 (La.1974).

La.Code Crim.P. art. 771 provides in pertinent part:

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

We do not find, nor does defendant claim, that the allegedly impermissible remark was deliberately obtained by design of the prosecutor to prejudice the rights of defendant. The police officer’s answer was unsolicited and unresponsive to the prosecutor’s question and was not deliberately uttered by the witness to prejudice defendant. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for the reversal of a conviction. State v. Hardy, supra; State v. Jones, supra; State v. Luneau, 323 So.2d 770 (La.1975); State v. Lewis, 315 So.2d 626 (La.1975); State v. Gabriel, 308 So.2d 746 (La.1975). Defendant was in no way connected with the report of an armed robbery at Earl’s Superette, and no further mention was made of that robbery during trial. Under the circumstances, we do not consider that this isolated reference to another armed robbery by this witness was of any consequence. Therefore, we do not find that the remark created any prejudice in the mind of the jury. The trial judge did not err in denying defendant’s motion for a mistrial.

Defendant’s contention that the trial court erred in failing to admonish the jury to disregard the remark is equally without merit. Under La.Code Crim.P. art. 771, it is incumbent on the party moving for the mistrial to request the admonition. State v. Corey, 339 So.2d 804 (La.1976); State v. Gilmore, 332 So.2d 256 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). Since defendant did not request an admonition, the trial court did not err in failing to give one.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OP ERROR NO. 5

Defendant contends the trial court erred in denying defendant’s motion for á new trial on the ground that the verdict was contrary to the law and the evidence. He argues that the victims of the armed robbery failed to make a positive identification of him.

Where error is assigned to the refusal of the trial judge to grant a motion for a new trial grounded on the allegation that the verdict is contrary to the law and evidence, nothing is presented for our review, La.Code Crim.P. art. 858; State v. Jack, 332 So.2d 464 (La.1976); State v. Celestine, 320 So.2d 161 (La.1975); State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Gilbert, 286 So.2d 345 (La.1973); State v. Plummer, 281 So.2d 716 (La.1973).

Assignment of Error No. 5 is without merit.

DECREE

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