author: SUMMERS, Justice. CALOGERO, Justice BARHAM, Justice

text:
    STATE of Louisiana v. Timothy ROSS.
    No. 56436.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Lawrence J. Genin, Chauppette, Genin, Mendoza & Parent, Marrero, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., James M. Lock-hart, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gret-na, Keith S. May, Research Attorney, Research and Appeals Div., for plaintiff-ap-pellee.
   SUMMERS, Justice.

On September 23, 1973 Timothy Ross, Clarence Thomas and Irving Joseph Jackson were charged by bill of information with the armed robbery on August 31, 1973 of Robert Richard. La.R.S. 14:64. Ross was separately tried, convicted on December 17, 1973 and sentenced. He urges six bills on this appeal.

Bill 1

A motion to suppress his confession was filed by the defendant on the ground that it was not free and voluntary as he was “unable to comprehend said statement as given to the police” due to his illiteracy. In effect he alleges that because he was unable to read and write, he could not fully understand the contents of the document he signed, and for that reason the police could have inserted matter without his knowledge.

After a hearing out of the presence of the jury, the motion to suppress was denied and this bill was reserved. At the hearing detective Gray testified that the defendant, in the company of his brother and a woman, turned himself in when he walked up to Gray and Patrolman Thomas on the corner of Burmaster and DeGaulle Streets in Algiers on September 28, 1973. Thereafter Ross was taken by the officers to the Gretna City Hall, and at 12:35 that afternoon he was advised of his rights. Ross indicated that he understood, and he signed a rights of arrestee form. At 12:50 Gray began to take the question and answer form statement. After the statement was typed, Ross, who had stated that he had only an eighth grade education and could not read and write well, was given an opportunity to read it. To be certain that he understood what he was signing, Gray also read the statement back to him. Ross stated that he understood. Thereafter, at 1:45, the statement was signed by Ross on each page in the presence of Gray and patrolman Thomas. Gray testified that no coercion, threats or promises were made to induce Ross to sign.

At the hearing, Ross admitted that he turned himself in and that, although he was illiterate, he understood his right to remain silent and to have an attorney-present. He claimed, however, that he could not recall whether Gray had read the statement to him before he signed. He also claimed that Gray threatened to whip him if he did not sign. No assertion is made that any particular fact was added to or left out of his statement.

Low mentality and illiteracy in themselves are not grounds for ruling a confession involuntary. They are merely, like other factors, to be considered in the totality of the evidence on the issue. Here it is clear that Ross obeyed the innate compulsion to confess his transgression of the law. He understood he was giving a statement regarding his participation in the crime. He was, moreover, fully advised of his rights and admitted that he understood them. His later change of heart does not render the confession involuntary. The motion to suppress was properly denied. State v. Sears, 298 So.2d 814 (La.1974); State v. Walton, 179 La. 1006, 155 So. 756 (1934).

Bill 2

After the State’s witness, Russell Muse, a victim of the robbery, testified, the trial judge said, “You can step down. You are free to leave if you wish. Do you want to hold him for rebuttal?” Where-üpon the defense moved for a mistrial, arguing that the judge’s statement that the witness could leave indicated to the jury that what the witness said was correct and sufficient, making it unnecessary to recall him. The defense relies on Article 772 of the Code of Criminal Procedure to support his position. That article reads:

“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

The bill is wholly without merit. We do not read into the judge’s statement the meaning or inference the defense argument implies.

Bill 3

Another motion to suppress defendant’s confession was filed based upon the contention that defendant could not understand his rights because the officer who advised him of his rights had no legal training and was not a lawyer. According to this argument, only an expert may properly give such advice.

The Miranda decision (384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966]) does not require that each police station have a “station house layer” present at all times. It is a prerequisite to the free and voluntary character of the confession, however, that the confessor be fully informed of his rights and understands them. These requirements were met in the instant case. The bill has no merit.

Bill 4

During the trial, the following exchange occurred between the prosecutor and detective Gray:

“Q. I see. Would you read the statement to the jury. (Ross’s confession).
A. It’s a question and answer type statement. The first question: What is your full name ?’ Answer : ‘Timothy Ross, I have no middle name.’ ‘What grade did you go to in school?’ T went to the eighth grade.’ ‘Can you read and write?’ T can’t read or write too good.’ ‘Have you ever been told that you have the right to remain silent?’ ‘Yes.’ ‘How many times have you been arrested ?’ ” (parentheses added).

At this point defense counsel objected and moved for a mistrial based upon his contention that the reference to other arrests is a reference to inadmissible evidence of other crimes, which, under Article 770 of the Code of Criminal Procedure, furnishes grounds for a mistrial. Considering the fact that the answer to the question had not been read, the trial judge denied the motion for a mistrial, stating that an admonition, requested by the defense as an alternative, would be sufficient to cure the defense objection.

It is noted, and the State argues, that, inasmuch as the defendant’s answer to the question in the statement was never read, there was no reference to other “crimes committed or alleged to have been committed” as prohibited by Article 770. The answer may have disclosed that he had never been previously arrested.

The reading of the defendant’s statement by the police is, moreover, not within the prohibition against such comments “by the judge, district attorney, or a court official” as prescribed by Article 770. State v. Lewis, 315 So.2d 626 (La.1975). See also State v. Lepkowski, 316 So.2d 727 (La.1975).

Under these circumstances we agree with the trial judge that these facts did not warrant a new trial, and an admonition to the jury under his discretionary authority was sufficient. See La.Code Crim.Proc. art. 771.

Bill 5

When the trial judge refused to give his requested charges involving reasonable doubt, identification and hung juries, defense counsel reserved this bill.

A review of the requested charges and the general charge given by the trial judge satisfies us that the proposed charges were included in the general charge. In State v. Williams, 310 So.2d 528 (La.1975), this Court upheld the trial court’s refusal to give the same three charges, as they were adequately covered by a general charge similar to the one here.

This bill has no merit.

Bill 6

A motion for a new trial and a motion in arrest of judgment were denied.

In the motion for a new trial it is first alleged that the verdict is contrary to the law and the evidence. This allegation presents nothing for review.

Secondly, the motion for a new trial alleges that defendant was prejudiced by the trial judge’s comment on the evidence quoted and considered under Bill 2. Having found that Bill 2 had no merit, this allegation of the motion for a new trial is likewise without merit.

The third ground of the motion for a new trial, and the ground asserted in the motion in arrest of judgment, is a claim that Article 782 of the Code of Criminal Procedure (1966) is unconstitutional as it does not require a unanimous jury verdict in a prosecution for armed robbery, nine out of twelve being sufficient.

In this case the jury’s verdict was by a vote of eleven to one. In State v. Bradford, 298 So.2d 781 (La.1974) and State v. Blackwell, 298 So.2d 798 (La.1974), we held that less than unanimous verdicts are not constitutionally infirm and do not offend the Equal Protection or Due Process requirements of the State or Federal Constitutions. See also Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

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

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

CALOGERO, J., dissents and assigns reasons.

BARHAM, J., dissents and assigns reasons joining in the reasons assigned by CALOGERO, J.

CALOGERO, Justice

(dissenting).

I believe that when the district attorney asked Detective Gray to read “in full” the statement of defendant Ross, having a copy before him which he knew included a question and answer as to the number of defendant’s arrests, he triggered the prejudicial indirect reference to prior crimes and should therefore be charged with having made the impermissible reference.

Accordingly, I would find a violation of the Louisiana Code of Criminal Procedure, Article 770 and reverse this conviction.

BARHAM, Justice

(dissenting).

When the State introduced a confession by asking a witness to read that confession to the jury, the State became responsible for any surplusage which is violative of La.C.Cr.P. art. 770. The motion for mistrial which was raised because the State had made reference to other arrests through the witness’ reading of a confession had merit. Denial of that motion is reversible error.

I respectfully dissent.

      . La.Code Crim.Proc. art. 770:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      ****>}:
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      * * * *
      “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Billy HOUSE.
    No. 56338.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    William E. Woodward, Clinton, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant was charged with possession with intent to distribute marijuana. On January 13, 1974, after a trial by jury, he was found guilty as charged and sentenced to ten years at hard labor. The District Attorney then filed a bill against the defendant under the multiple offender law. After a hearing, the trial judge annulled the ten-year sentence and sentenced the defendant to one hundred years at hard labor. The defendant reserved five assignments of error. Only one is briefed; the others are, therefore, considered abandoned. State v. Nelson, 306 So.2d 745 (La.1975); State v. Navarre, 302 So.2d 273 (La.1974).

As the State was introducing evidence to substantiate defendant’s alleged prior convictions, the defendant stated that he did “not wish to admit he is the same individual on the documents offered by the D.A.” The State then called Aven Dearman, a fingerprint expert employed by the Louisiana State Police Bureau of Identification. He compared the past fingerprint records of defendant with fingerprints taken from the defendant in court and positively identified all as belonging to defendant. When the State introduced the in-court fingerprints, the defendant reserved this assignment of error.

The defendant, who did not take the stand to testify, argues that his privilege against self-incrimination was violated when he was ordered to have his fingerprints taken in open court. Although he acknowledges that fingerprint evidence is a non-testimonial means of identification, he argues that taking them during trial has the same effect as defendant being forced to take the stand and admit he is guilty of the offense charged. Here the necessity of identifying his prints is a crucial link, he contends, without which identification the State cannot prove its case.

Defendant’s privilege against self-incrimination is not violated by taking his fingerprints in open court. United States ex rel. O’Halloran v. Rundle, 384 F.2d 997 (3rd Cir. 1967), cert. denied, 393 U.S. 860, 89 S.Ct. 138, 21 L.Ed.2d 128. See also Ballard v. State, 487 S.W.2d 724 (Tex.Cr.App.1972), State v. Stuard, 104 Ariz. 305, 452 P.2d 98 (1969). Requiring a defendant to supply evidence of his identity does not violate the Fifth Amendment. La.R.S. 15:529.1(F); State v. Jackson, 298 So.2d 277 (La.1974); State v. Tarrance, 252 La. 396, 211 So.2d 304 (1968), cert. denied 393 U.S. 1038, 89 S.Ct. 662, 21 L.Ed.2d 586 (1968); State v. Simien, 248 La. 323, 178 So.2d 266 (1965); 8 Wigmore on Evidence ¶¶2263, 2265 (McNaughton Rev.1961), 28 ALR ¶d 1115 ¶14.

The conviction and sentence are affirmed.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Leroy JONES, Appellant.
    No. 56003.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Edward S. Bopp, a Law Corp., Arabi, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. An-dry, III, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant Jones was convicted of manslaughter La.R.S. 14:31, and sentenced to twenty-one years at hard labor. We find no merit to any of the seven bills of exceptions urged on appeal as ground for reversal, for the following reasons:

Bill No. 1: The defendant was fully permitted to examine the racial prejudices, if any, of the prospective jurors. This bill was taken to the trial court’s sustaining a State objection to one particular question as to one particular juror (who was later peremptorily challenged by the defense): “What would your feelings be if your son started taking out a colored girl?” The trial court did not abuse its discretion in disallowing the hypothetical question as irrelevant and potentially misleading insofar as the issue of racial bias, State v. Scott, 307 So.2d 291 (La.1975), especially since the ruling expressly did not preclude relevant and rational examination of the venireman of the issue.

Bill Nos. 2, 4, and 5: The victim, Marshall, was stabbed in the chest by the defendant Jones. At the trial, Jones contended that Marshall had attacked him and that he had only “jugged” Marshall in self-defense.

These bills were taken to the coroner’s testifying that the cause of death was the stab wound to the heart received by Marshall, the victim. The coroner, Dr. Dai-grepont, had been called to the scene and had found Marshall lying on a porch, with a gaping and deep wound in his left chest. After examining Marshall for life-signs, the coroner pronounced him dead.

The doctor relied not only upon his own observation but also upon the pathologist’s report received from Charity Hospital, in testifying that the death was caused by the wound through the chest to the heart and in completing the death certificate (S — 3).

These bills were taken solely on the basis that the doctor’s opinion as to the cause of death was based in part upon this medical report. We find no merit to the complaint. Under such circumstances, the doctor’s opinion as to cause of death is not inadmissible merely because it is in part based upon other medical or laboratory reports as well as upon his personal examination. State v. Sneed, 316 So.2d 372 (La.1975). See McCormick on Evidence, Sections 15, 314 (at pp. 732-33) (2d ed., 1972). Cf. Federal Rule of Evidence 703 (1975); also State v. Bray, 292 So.2d 697 (La.1974). The defense was not prevented from securing the testimony of the pathologist, for instance, if there had been any serious issue as to the cause of death being other than the stab wound; nor are we presented with a borderline diagnosis, where the trial court’s discretion might condition the admission of the witness’s opinion as to cause of death upon producing the pathologist (upon whose report the witness in part relied) for cross-examination, McCormick, Ibid.

Bill Nos. 3 and 8: The photographs, identified by the witnesses as true depictions of what they saw at the time, are admissible, despite objections that the photographer who took them should have testified or that the pictures could not be admitted without first proving more precise data as to who took them and how and when. See, e.g., State v. Williams, 311 So.2d 850 (La.1975); State v. Gordon, 305 So.2d 436 (La.1975), and State v. Browning, 290 So.2d 322 (La.1974) and Pugh, Louisiana Evidence Law 65 (1974). No objection was made at the trial as to the mode of dress of the defendant, as now urged on appeal.

Bill No. 6: The unsolicited response of the neighbor witness was not prejudicial and, at any rate, was admissible as res ges-tae, La.R.S. 15:447,448 (1950).

Additional Contention: In brief, the defendant now also contends that he was denied a speedy trial and should therefore be discharged. The record shows that the offense was committed April 1, 1973, that Jones was indicted June 12, 1973, that his motion for a speedy trial filed December 17, 1973 was granted within the month, with pre-trial motions heard February 6, 1974 and trial on the case set for and heard at trial on April 2,1974.

The state afforded the defendant a trial as soon as requested. Under all of the circumstances, the prior delay is not shown to have been unreasonable. It is not shown to have in any way prejudiced the accused in the preparation of his defense. Thus, the defendant is not entitled to have his conviction set aside because of the nonprejudicial and relatively short delay. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Cf. State v. Bullock, 311 So.2d 242 (La.1975).

Decree

For the reasons assigned, we affirm the conviction and sentence.

Affirmed.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Thelma KNIGHTEN.
    No. 56352.
    Supreme Court of Louisiana.
    Oct. 9, 1975.

      Walter C. Dumas, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant in this case was charged by bill of information with the crime of attempting to obtain possession of a controlled dangerous substance, dilaudid, by fraud, in violation of La.R.S. 40:971(B) (l)(b). After initially pleading not guilty to the offense, defendant changed her plea to one of guilty and was sentenced to two and one-half years at hard labor.

On appeal to this Court, defendant argues that her guilty plea was not given freely and voluntarily, and that she should therefore be allowed to withdraw it.

No motion to withdraw the guilty plea was ever filed by defendant, nor has she perfected an assignment of error for this appeal. And since the voluntariness of a guilty plea is not an error discoverable on the record, there is nothing for us to review.

For these reasons, the conviction is affirmed.

      . A review of the record, which is made unnecessary by our disposition in this case, does indicate a comprehensive explanation by the trial judge of defendant’s rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). However, we are not called upon in this appeal to make the determination as to whether defendant’s guilty plea was intelligent and voluntary. Defendant’s remedy on this constitutional ground is by writ of habeas corpus should she choose to pursue it.


text:
    STATE of Louisiana v. Hillary PIERRE.
    No. 55950.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Timothy W. Cerniglia, Asst. Dist. Attys., for plaintiff-relator.
    Frank J. Kenner, New Orleans, for defendant-respondent.
   SUMMERS, Justice.

By bill of information the District Attorney of Orleans Parish charged the defendant Hillary Pierre under Article 62 of the Criminal Code with simple burglary of a 1974 Ford automobile belonging to J. C. Combe, with intent to commit a theft therein. A motion to quash was filed on behalf of the defendant based upon the ground that the information failed to charge an offense which is punishable under a valid statute. La.Code Crim.Proc. art. 532(1). In the motion it is alleged that the facts establish that the automobile itself was not entered and defendant’s conduct was therefore not denounced by any criminal statute. The trial judge quashed the bill of information, and the State applied for certiorari which was granted. 309 So.2d 677.

Police officers on patrol saw defendant, while standing in front of a Ford Maverick belonging to J. C. Combe, raise the hood of the car, take out a pair of pliers, disengage the car battery, lift the battery out of the car, and walk off with it. They arrested defendant and charged him with simple burglary.

Article 62 of the Criminal Code defines the crime charged in these words :

“Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Article 60.
“Whoever commits the crime of simple burglary shall be imprisoned at hard labor for not more than nine years.”

The trial judge was of the opinion that the information should be quashed because burglary, historically and in the common law, was based upon the proposition that one should be protected in his dwelling from another who comes there to commit a theft. From this premise he reasons that it would be absurd to conclude that burglary could be committed by entry into the hood of an automobile, for no person could be expected to be inhabiting the engine compartment of an automobile. We cannot agree with this interpretation of the statute.

By the clear provisions of Article 62 simple burglary is the unauthorized entering of a vehicle with the intent to commit a felony or theft therein. Upon the facts of this case there is no doubt that the removal of the car’s battery was unauthorized, and that a theft of the battery occurred. The issue, then, is whether an entry has been made and whether that entry must be made into a part of the vehicle which could be inhabited, or where a per-' son could be found.

A crime in Louisiana is that conduct which is defined as criminal in the Criminal Code, or in other acts of the legislature, or in the constitution of this State. La.R.S. 14:7; State v. David, 226 La. 268, 76 So.2d 1 (1955). The determination and definition of acts which are punishable as crimes are, for this reason, purely legislative functions or declarations of the people embodied in the constitution. State v. Vaccaro, 200 La. 475, 8 So.2d 299 (1942). There are, therefore, no common-law crimes in Louisiana at this time. State v. Truby, 211 La. 178, 29 So.2d 758 (1947); State v. Williams, 189 La. 355, 179 So. 452 (1938).

Article 60 of the Code defines aggravated burglary as the unauthorized entering of “any inhabited dwelling, or of any structure, water craft, or movable where a person is present.” This definition falls to some extent within the contemplation of the historical and common law definition of burglary as a law designed for the protection of the person’s place of habitation. Significantly, however, Article 62, upon which this prosecution is based, makes no reference to an “inhabited” dwelling, structure, watercraft or to a movable “where a person is present.” It was, then, clearly the purpose of the legislature to define simple burglary to include unauthorized entries with intent to commit a theft “other than as set out in Article 60” — that is, other than entry into dwellings, movables, etc., which are inhabited or where a person is present. From this, the conclusion follows that Article 62 is burglary other than burglary as that crime is defined in Article 60 or historically and in the common-law.

It was undoubtedly the deliberate purpose of the legislature in enacting Article 62 to broaden the definition of the crime of burglary to include lesser offenses where the felonious entry did not involve entry into an “inhabited” enclosure or one “where a person is present.” This purpose is not only manifested by the language of Articles 60 and 62 defining the two crimes, but also by the disparate sentences which may be imposed for their violation. At the same time the enactment of Article 62 was apparently a recognition of the more reprehensible nature of a theft resulting from the unauthorized entry into an enclosure, as manifested by the lesser punishment which may be imposed for theft generally. See La.Crim.Code arts. 67 and 68.

We think it is clear, therefore, that the historical background which resulted in the common-law definition of burglary is inappropriate to the interpretation of Article 62. Article 62 does not require that the entry be into a part of the vehicle capable of or designed to accommodate a person. It is sufficient if the entry into the vehicle is accomplished, as in this case, by opening the hood and stealing the battery from the engine compartment. Houchin v. State, 473 P.2d 925 (Okla.Cr. App.1970); People v. Lamica, 274 Cal.App.2d 640, 79 Cal.Rptr. 491 (1961); Inbau, Thompson and Moenssen, Criminal Law, p. 616 (3d ed. 1973); LaFave and Scott, Criminal Law, p. 710 (1972); 2 Russel on Crime, pp. 822-23 (12th ed. 1964) ; Clark and Marshall, Crimes, [[411 (5th ed. 1952). Therefore, Article 62 properly charges a crime under the facts of the case at bar.

When the language of a criminal statute is clear, as it is here, courts are not authorized to resort to history and the common law to ascertain its meaning. To the contrary, upon no pretext is the plain meaning to be twisted and distorted, “all of its provisions shall be given as genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La.Crim.Code art. 3. Upon these principles the judgment of the trial judge quashing the indictment must be reversed.

For the reasons assigned, the judgment of the trial court quashing the information is reversed, and the case is remanded to the trial court to be proceeded with according to law.

DIXON, J., concurs.

BARHAM, J., dissents.

      . La.Crim.Code art. 60 :
      “Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
      (1) Is armed with a dangerous weapon; or
      (2) After entering arms himself with a dangerous weapon; or
      (3)Commits a battery upon any person while in such place, or in entering or leaving such place.
      “Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.”


author: SUMMERS, Justice. BARHAM, Justice

text:
    STATE of Louisiana v. Arnold Ray O’CONNER.
    No. 56386.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Murphy W. Bell, Director, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Bryan E. Bush, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By bill of information defendant Arnold Ray O’Conner was charged with armed robbery, La.R.S. 14:64. He was tried by a jury of twelve, found guilty as charged and sentenced to serve forty years at hard labor.

The prosecution arises out of these facts:

On the evening of September 29, 1973, as a young woman was leaving her home alone she was attacked by an assailant. Her screams startled the attacker and he fled. She returned to her house, locked the door and telephoned one of her friends for help. Afterward she phoned the police. While she was doing so the attacker returned and literally broke the door down to gain entry into her house. He ran into the kitchen, picked up a knife and forced the victim to surrender the keys to her car. He then compelled her to leave the house with him. She was forced into her car before the police arrived, and the assailant drove to a deserted house on Plank Road where he proceeded to rape her. After the act, the attacker bound the victim and shut her in a closet. He then left the house.

About an hour later the victim succeeded in loosening the bonds around her feet, struggled to a nearby window and called for help. An employee of the Louisiana Capitol Police driving by at the time heard her cries and went to her rescue. He released her from the ropes binding her hands and feet and called the city police.

A description of the attacker was given to the police by the victim, and the description was broadcast. Plain clothes police on the special “burglary intercept force” thought they recognized the description as a man they had previously picked up on a concealed weapon charge. These officers proceeded to the O’Conner’s apartment and questioned O’Conner and his wife. A short while later several detectives assigned to the case arrived at the O’Conner apartment. They obtained a waiver of rights from O’Conner to allow them to search his apartment. The search revealed clothes similar to those worn by the victim’s assailant. Also, two keys were found in a pair of pants fitting the description of those worn by the assailant. The keys fit the victim’s car.

O’Conner was arrested. Approximately twelve hours after the offense, O’Conner was placed in a line-up at which he was positively identified by the victim.

A number of bills of exceptions were reserved at the trial which began on April 8, 1975 and ended on April 15, 1975.

ERRORS NOS. 1, 2, 3, 4 and 5

These bills were reserved when the trial judge refused to allow the defense challenge for cause of five prospective jurors. These challenges were based upon the ground of racial prejudice, which the defense argues is indicated for all five prospective jurors by the colloquy between defense counsel and the prospective juror Norman L. Thibodeaux:

“Q. I want to know whether you— whether — if you — you said you were free of racial prejudice — I want to know whether or not you believe whites and blacks should be allowed to intermarry—
A. No.
Q. You don’t believe that?
A. No.
Q. So you are prejudiced aren’t you?
A. I guess I am.”

In each instance as a result of similar questions and answers defense counsel sought and was denied a challenge for cause, and in each instance a bill of exception was reserved.

To support his contention here defense counsel relies upon Article 797 of the Code of Criminal Procedure assigning as a cause for challenge of a juror that “The juror is not impartial, whatever the cause of his impartiality” and that there is “enmity between the juror and the defendant . such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.” These causes have not been established in the record.

We are satisfied that nothing in this record demonstrates enmity of the prospective jurors against the defendant. The sole question, therefore, is whether their negative attitude toward racial intermarriage is cause to brand them as partial to such an extent that they are unable to “render an impartial verdict according to the law and the evidence.” La.Code Crim. Proc. at 797. A person’s negative opinion on racial intermarriage is not of itself conclusive or even persuasive, in determining his ability to judge fairly and justly, free from prejudice.

In his voir dire examination of the first panel of six prospective jurors, several of whom are subject to these bills of exceptions, the trial judge sought to elicit answers which would reveal racial prejudice. All members of the first panel, including Thibodeaux, responded that the fact that the accused was black would have no effect on their judgment. Defense counsel in his voir dire examination revealed that the victim in the instant case was white and the accused was a black man. He then asked each prospective juror whether he was free of racial prejudice and whether he had harbored animosity toward the accused because he was black and the victim was white. Each prospective juror ultimately responded that he was free of prejudice.

A trial judge’s discretion in ruling on a challenge for cause will be sustained unless unwisely exercised, provided he allows considerable latitude on voir dire examination. State v. Normand, 298 So.2d 823 (La.1975); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); State v. Square, 257 La. 743, 244 So.2d 200 (1971).

And to determine a juror’s competency, a trial judge is not expected to rely upon one isolated area of the voir dire examination; the true test of the juror’s qualification to serve is his ability to judge impartially based upon the law and the evidence admitted at the trial. Thus, a judge is not bound by a juror’s answer to a particular question when the answer is opposed to and inconsistent with other answers and other facts and circumstances known to the judge as a result of the entire examination. State v. Oliphant, 220 La. 489, 56 So.2d 846 (1925).

These bills have no merit.

ERRORS NOS. 6, 8 and 14

Under this heading defense counsel asserts that the trial court erred in allowing the admission of the fruits of a search executed on O’Conner’s apartment without a warrant, following his signing of a search waiver, when the waiver was signed involuntarily. Under these circumstances, it is contended, the search was illegal and the objects seized as a result were illegally obtained and as such were inadmissible as evidence against O’Conner under principles recognized in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and State v. Saia, 302 So.2d 869 (La.1974).

Although recognizing that a search conducted as a result of consent on the part of the party involved is a specifically established exception to the constitutional requirement that a search must be based upon a warrant issued upon probable cause, defense counsel contends that the waiver or permission to search in the instant case was signed under an umbrella of intimidation and coercion. Moreover, defendant was not given the Miranda warnings. For this reason, he argues, there was no consent at all, and, therefore, the search and seizure was illegal.

The voluntariness of such a waiver is a question of fact to be determined from the totality of the circumstances which gave rise to the giving of consent.

The burden of proving that the consent was invalid on a motion to suppress is upon the defendant. La.Code Crim.Proc. Art. 703. It does not appear that the defendant has discharged this burden.

At the hearing on the motion to suppress the evidence obtained in a search of his residence, the defense established that at the time the waiver was executed, approximately ten police officers, some plainclothes and some uniformed, were present on or around his premises. No Miranda, warnings were given defendant, he was simply requested to consent to a search. It was then three o’clock in the morning.

These circumstances, the confrontation between defendant and his wife and the police officer, are advanced as reasons to conclude that the consent to search was not free and voluntary. O’Conner did not take the witness stand at the hearing on the motion to suppress for the limited purpose of testifying that his signature to the waiver was not free and voluntary.

There is, therefore, no direct evidence of intimidation by the police. In fact, the whole theory of the defense seems to be that the police planted the keys to the victim’s car in his clothes. And the record will show that defendant did not object to having the police search his apartment. To the contrary, according to the witnesses, he stated that he had nothing to hide and seems to have wanted the search done and over with.

Other issues raised by these bills have not been argued and are considered waived.

The issues presented are without merit.

BILLS 7, 9 and 15

Under this heading the defense contends that the reference to rape by the State’s witness in this trial for armed robbery is error.

The contention is that evidence of criminal activity other than that for which defendant was on trial was inadmissible, except under specific statutory exceptions permitting evidence which is part of the res gestae, or evidence of criminal acts which is relevant to show intent, knowledge or system under Sections 446, 447 and 495 of Title 15 of the Revised Statutes. State v. Prieur, 277 So.2d 126 (La.l973) is also cited to support the contention.

This contention was squarely met and answered in the recent case of State v. Hatch, 305 So.2d 497 (La.1975). There, speaking for a full court with only one concurring vote, Justice Calogero said:

“Force or intimidation being an essential element of ,the crime of armed robbery, the State had the burden of proving this element beyond a reasonable doubt. For this purpose, the victim’s clothing, which the assailant cut off of her with a large knife, and the testimony of the coroner, corroborating the victim’s story that she had been raped prior to the robbery, was relevant.
“Furthermore, their probative value warranted their introduction notwithstanding the coincident prejudicial effect.”

True the evidence of rape is highly prejudicial, it is at the same time highly probative, material and relevant.

These bills have no merit.

ERRORS NOS. 11 and 12

In Bill No. 11 the defense alleges that State Exhibit 27, consisting of Kool Cigarette butts and an empty cigarette package, was allowed into evidence before a proper foundation was laid. These objects, recovered at the scene of the crime, are connected both to the crime and to the defendant by the testimony of the victim. Also two detectives identified the exhibits as objects found at the scene of the crime. In addition, the relevance of these objects is further established by the fact that a package of Kool cigarettes was seized on defendant’s person at the time of his arrest and he was observed purchasing a package of Kool cigarettes some time thereafter.

When the cigarette butts and empty cigarette package were found, the detectives testified they brought them to the police crime lab. One of the officers testified that he personally brought the objects from the crime lab to the courtroom.

Although the victim could not identify the brand of cigarettes, she testified that defendant smoked in her car and at the house on Plank Road. Given these facts, the cigarette butts and package found at those locations were relevant and admissible to corroborate her testimony. The weight of the evidence was a question for the jury. La.R.S. 15:441; State v. Sarrazin, 291 So.2d 393 (La.1974); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972); State v. Coleman, 254 La. 264, 223 So.2d 402 (1969).

In Bill No. 12 the defense alleges that the trial court erred in requesting defendant to demonstrate in court how he opened his cigarette pack, such a display being viola-tive of his right not to testify against himself.

A detective testified that he found an empty Kool package at the scene of the rape on Plank Road, and that the package was opened from the bottom. This, he said, was a most unusual way to open a package of cigarettes, and he had never seen it before. Later, prior to taking O’Conner to the Baton Rouge jail to be printed and processed, he saw O’Conner buy a package of Kool cigarettes and open them from the bottom.

The jury was then retired. At that point the prosecutor asked defense counsel if he would ask his client to show the court how the pack of cigarettes in his pocket had been opened. When defense counsel deferred to the court, the prosecutor asked the court to have the defendant produce the pack of cigarettes in his pocket for inspection. Out of the presence of the jury, the trial judge ordered defendant to produce the cigarette pack and observed that it was opened from the bottom. They were Kools.

The jury was returned to the box. Whereupon, the prosecutor asked the defendant to stand and hand the package of Kool cigarettes in his left-hand shirt pocket to the officer. The defendant complied. Later defendant took the stand in his own behalf and explained that he opened his cigarettes from the bottom to keep the filters clean.

The constitutional privilege against self-incrimination only protects an accused from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature. La.Const.- arts. I & IX; State v. Washington, 294 So.2d 794 (La.1974), Accused made to display a bruise mark; State v. Jones, 261 La. 422, 259 So.2d 899 (1972), defendant compelled to stand to be identified; State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970), defendant compelled to utter “Hurry up” for voice identification; State v. Thompson, 256 La. 934, 240 So.2d 712 (1970), defendant compelled to give handwriting sample; State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), cert. denied 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691, compulsory extraction of blood samples; State v. Junius, 257 La. 331, 242 So.2d 533 (1970), accused forced to reveal scar on arm; State v. Roy, 220 La. 1017, 58 So.2d 323 (1952), defendant compelled to have her height measured before the jury; State v. Prudhomme, 25 La.Ann. 522 (1873), comparison of defendant’s boots with tracks left at scene of the crime. The rule is similar with respect to the Fifth Amendment privilege against self incrimination. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

This bill has no merit.

ERROR NO. 13

Defendant took the stand at the trial in his own behalf. In cross-examination by the prosecutor, this question was propounded:

“In face of all the evidence that’s been put on this stand, sir — sworn testimony after sworn testimony, sir — you are asking these gentlemen to believe that everybody is lying, save you, despite the fact that evidence was found in your possession which belonged to this young lady ?— A purse found on North Street, which apparently had been dumped there by someone who had to drive or be on North Street — and you were there, on North Street ?”

According to the defense, this comment is nothing more than personal opinion of the prosecuting attorney unsupported by any testimony that the victim’s purse was dumped on North Street. The question is whether the quoted comment is an expression of the prosecutor’s personal opinion of the defendant’s guilt which the law prohibits.

Statutory law allows the prosecutor to draw reasonable inferences from evidence in the record. La.R.S. 15:481, 482. It is reasonable for the prosecutor to infer that the victim’s purse was dumped on North Street by the defendant because of the other evidence linking him to the vic-

tim, and because defendant’s own testimony indicates that he was' walking on the streets in the area after the crime was committed. A considerable latitude is allowed the prosecutor in commenting on the evidence, especially by way of interrogation on cross-examination, but this latitude does not extend to an expression of the prosecutor’s personal opinion that the defendant on trial is guilty. State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). There is no violation of these rules in the instant case.

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

CALOGERO, J., concurs being of the opinion that there is no merit in any of defendant’s bills.

TATE, J., concurs. Error 13 concerns a most improper question, since argumentative and verging on reversible prosecutorial comment. Although in context, probably harmless, as error, we should denote it as such to avoid recurrence.

BARHAM, J., dissents and assigns reasons.

BARHAM, Justice

(dissenting).

In my opinion the facts set out by the majority upon which they base their holding of a constitutional search are not the full facts disclosed in the record. Under the facts in the record, there was an unconstitutional search by reason of a fraudulent obtaining of a “consent to search” from the wife while the husband-defendant, was present in the adjoining room.

I respectfully dissent.


text:
    STATE of Louisiana v. Wilbert MARCELL.
    No. 56387.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Bernard E. Burk, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Wilbert Marcell, was convicted of distribution of phenmetrazine, a controlled dangerous substance, in violation of La.R.S. 40:968, subd. A. He was sentenced to pay a fine of $1500 plus court costs, or in default to serve six months in the parish jail, and to serve 9J4 years at hard labor in the custody of the Director of the Department of Corrections.

After trial and Conviction, defendant dismissed his trial counsel and retained a second attorney to represent him on appeal. Retained appellate counsel was substituted as defendant’s counsel of record, and in accord with article 844 of the Louisiana Code of Criminal Procedure, he filed with the trial court an assignment of errors setting forth fourteen specific matters to be argued on appeal.

Defendant admits, and our review of the record verifies, that with respect to only one of the assigned errors was an objection made during trial by defendant’s trial counsel. This assignment denotes as error the overruling of a defense objection to the introduction into evidence of the phen-metrazine pills, defendant having urged that the chain of custody had not been established. The merit of that assign-will be discussed.

The distribution for which defendant was convicted involved a sale of five phen-metrazine pills to agent Burns, an undercover police officer. The sale was made at defendant’s apartment in the early morning hours of February 2, 1974. The record reveals that after purchasing the phenmetrazine pills, Burns returned to his office. With him was Earl Wright, an undercover investigator for the Office of the District Attorney, who had driven with Burns to defendant’s apartment but who had remained in the car for surveillance purposes during the purchase. Burns and Wright consulted a Physician’s Desk Reference, and identified the pills, which contained the marking BI 62, as phenmetra-zine (preludin), a controlled dangerous substance.

Officer Burns locked the pills in his briefcase and kept the briefcase in his possession at his home until midday, when upon returning to work, he turned the pills over to his superior, Sergeant Pruitt. The pills were placed in an evidence envelope, which was labeled, sealed, and placed in the evidence locker. Sergeant Pruitt had sole access to this locker. The pills remained in the evidence locker until Sergeant Pruitt removed the envelope and took it to the State Police Crime Laboratory. There the pills were given to Paul Cobb, an employee of the crime lab, who in turn gave Sergeant Pruitt a receipt. The pills were eventually independently analyzed by two chemists employed by the crime lab, Ronnie Jewell and Grace Johan-son. Miss Johanson brought the evidence envelope containing the pills to court on the day of trial.

Defendant’s contention that the chain of custody was not established is based on the fact that neither Paul Cobb nor Ronnie Jewell testified at trial.

We find no merit in defendant’s assignment of error. The evidence taken as a whole was sufficient to establish a chain of custody to permit introduction of the pills. Burns, Wright and Sergeant Pruitt all identified the pills brought to court by Miss Johanson as the pills they had seen earlier and placed in the evidence envelope. It is well settled that evidence may be admitted if the custodial showing establishes that it is more probable than not that the evidence presented at trial is that which is connected with the case. The weight afforded the evidence is a factual matter for the jury. State v. Sibley, 310 So.2d 100 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

There is no merit in this assignment of error.

With respect to the remaining thirteen assignments of error, a review of the record discloses that trial counsel made no objection during trial at the time these alleged errors occurred. Nor does it appear, with respect to any of these asserted errors, that counsel for the defendant moved for a mistrial.

These thirteen assignments present nothing for review, for Article 841 of the Louisiana Code of Criminal Procedure provides :

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. . It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”

By failing to make a timely objection, a defendant waives his right to subsequently attack the judgment of conviction on grounds of error or irregularity. State v. Craddock, 307 So.2d 342 (La.1975); State v. Refuge, 300 So.2d 489 (La.1974); State v. Bowen, 292 So.2d 197 (La.1974); State v. Lewis, 288 So.2d 324 (La.1974); State v. Sullivan, 159 La. 589, 105 So. 631 (1925); State v. West, 105 La. 639, 30 So. 119 (1901).

Notwithstanding the foregoing, counsel for defendant argues that under the provisions of Article 1, § 19 of the Louisiana Constitution of 1974 defendant is entitled to a review of his assignments of errors despite the failure of trial counsel to object at the time the alleged errors occurred. Defendant interprets Article 1, § 19, guaranteeing a defendant the right of review unless the defendant intelligently waivés that right, as meaning that a defendant does not lose his right to a review of trial errors unless he knowingly and intelligently waives his right to object or his right to demand a mistrial. He cites Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) for the proposition that an accused should not be presumed to have exercised a deliberate choice because of silence or inaction, and Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972) for the proposition that a waiver must be the product of an understanding and knowing decision of the accused himself, who is not necessarily bound by the decision or default of his counsel.

Because Barker involved an alleged waiver of the right to a speedy trial and Humphrey a waiver of state remedies such as would bar federal habeas corpus relief, we do not find those cases disposi-tive of the issue with which we are here concerned. We would apply the principles of waiver expressed in Barker and Humphrey if in the instant case defendant were before us seeking an out of time appeal, arguing that while his counsel may have failed to take the proper steps to perfect an appeal, he himself had not intelligently or knowingly participated in that decision or neglect. We read Article 1, § 19 of the Louisiana Constitution of 1974 as establishing the right to an appeal and as conferring on the accused, and the accused alone, the right to waive this right. But it is apparent that defendant in the instant case has been afforded his right to appeal. His conviction is properly before this Court for appellate review, and we have reviewed his conviction insofar as Art. 841, C.Cr.P. allows. The problem is thus not that defendant is being denied the right to an appeal, but that the extent of this appellate review has been limited by the failure of his trial counsel to object to alleged errors occurring during trial.

The contemporaneous objection rule, as embodied in Article 841 of the Louisiana Code of Criminal Procedure, is necessary in order to promote judicial efficiency and in order to prevent a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors that might easily have been corrected by objection at trial. The rule is a reasonable one when viewed in light of the Sixth Amendment right to counsel, for an accused is not forced into a trial to fend for himself, but is instead afforded the opportunity to be represented by counsel trained in the intricacies of the law. While an accused may easily be informed of or educated in some of his fundamental rights and options, such as the right to assistance of counsel, the right to a speedy trial, and the right to exercise the privilege against self-incrimination, such education is not possible when it comes to the intricate and numerous rules governing trial by judge or jury. Consequently, during the course of trial, a defendant must rely upon his counsel, and the acts and choices of counsel are deemed to be those of the defendant himself. Where it appears that counsel has failed in his professional duty toward a defendant, our system affords a defendant relief through a writ of habeas corpus alleging incompetent or ineffective counsel, in effect the deprivation of the right to the assistance of counsel. Competence or incompetence of that counsel is not before us in this appeal.

We conclude, therefore, that Article 841 of the Louisiana Code of Criminal Procedure does not violate Article 1, § 19 of the Louisiana Constitution of 1974. While the constitutional provision does afford each defendant the right to judicial review based upon a complete record of all evidence upon which the judgment is based, the extent of this right is circumscribed by reasonable procedural formalities and requirements, including contemporaneous objections and the filing of assignments of error.

Having found no merit in defendant’s one assignment of error, and no errors discoverable by a mere inspection of the pleadings and proceedings, we affirm the defendant’s conviction and sentence.

      . These thirteen assigned errors are the following :
      1. The trial court erroneously instructed the jury venire concerning the general qualifications necessary to be a juror (Assignment of Error No. 1) ;
      2. The prosecutor was erroneously allowed to inform the jurors during voir dire and again during closing argument of the maximum sentence for the crime charged (Assignments of Error Nos. 2 & 6) ;
      3. Evidence of other crimes was purportedly presented before the jury in the prosecutor’s opening statement, in the testimony of a state witness, and in the prosecutor’s closing argument (Assignments of Error Nos. 3, 4 and 9) ;
      4. The prosecutor made erroneous factual statements and implications during closing argument (Assignments of Error Nos. 7 and 8) ;
      5. The trial court erroneously instructed the jury (Assignments of Error Nos. 10, 11, 12 and 14) ;
      6. The trial court during his charge to the jury indirectly commented upon the evidence (Assignment of Error No. 13).

      . Article 1, § 19 provides in pertinent part:
      “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived.”


text:
    STATE of Louisiana v. Robin L. HUSBAND.
    No. 56409.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Barry Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Robin L. Husband, was charged with and convicted of the armed robbery of Samuel Woods, a delivery man for Krauss Company, Ltd. of New Orleans. He was sentenced to serve fifty years at hard labor in the custody of the Department of Corrections.

Following trial, defendant’s appointed counsel filed in the district court a specification of error upon which he relies in this appeal. In that specification of error counsel admits that during trial there were no objections made. He nonetheless requests that the Court examine the entire record for any errors, and he particularly suggests that we scrutinize on-the-scene identifications of defendant made by the victim and his helper, contending that the identification procedure “was highly suggestive of mistaken identification and that a new trial should be granted in this matter due to the identification procedures used by the state.”

As he argues in brief, defendant is of course entitled under the provisions of Article 1, Section 19 of the Louisiana Constitution of 1974 to the right of judicial review based upon a complete record of all evidence upon which the judgment is based. We have held, however, that this right to judicial review does not pretermit the need for compliance with Article 841 of the Code of Criminal Procedure. State v. Marcell, 320 So.2d 195, No. 56,387 on the docket of this Court, decided this date.

There being no objections raised during the trial, and no motion to suppress filed in connection with the identifications made of the defendant by the victim and his helper shortly following and at the scene of the crime, there is nothing for us to review. Art. 920(1), Code of Criminal Procedure.

We have additionally examined the entire record for errors discoverable and have found none. Article 920(2), Code of Criminal Procedure.

Accordingly, the conviction and sentence of defendant,. Robin L.- Husband, is affirmed.

DIXON, J., concurs.

      . Article 841 provides :
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to ruling or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”


text:
    Louis CHARBONNET, III v. James J. HAYES.
    No. 56836.
    Supreme Court of Louisiana.
    Sept. 10, 1975.
   In re: James J. Hayes applying for Writ of Certiorari or Review. 318 So.2d 917.

Application denied. On the facts found by the court of appeal, the result is correct. .


text:
    Gregory J. M. BURGUIERES v. Edward E. BURGUIERES.
    No. 56696.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Gregory J. M. Burguieres applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 505.

Application denied for the reasons expressed by the court of appeal.


text:
    Charlie ROBERSON v. LIBERTY MUTUAL INSURANCE CO.
    No. 56761.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Charlie Roberson, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 316 So.2d 22.

Writ granted. Case remanded for a rehearing before a panel of 5 judges. Louisiana Constitution of 1974, Art. 5, Sec. 8.


text:
    STATE of Louisiana ex rel. Sampson J. PARKER and Alton J. Parker v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56621.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Sampson J. Parker and Alton J. Parker applying for Writ of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ denied. The return of the trial judge received on October 8, 1975 sets forth reasons for denial of a similar application in 1973. It satisfies this Court that counsel was not incompetent.


author: CALOGERO, J.,

text:
    Mrs. Nancy Blanchard, wife of/and Larry BLANCHARD v. Louis WICKS et al.
    No. 56714.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Mrs. Nancy Blanchard, wife of/and Larry Blanchard applying for cer-tiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 314 So.2d 366.

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

TATE and DIXON, JJ., dissent from the denial.

CALOGERO, J.,

dissents. No one can deny (and the Court of Appeal has not) that this truck driver was negligent, and his negligence causative of the accident, and that Mrs. Blanchard was free from fault. The law. would therefore require that the passenger, Mrs. Blanchard, recover.


text:
    Walter PILCHER, Jr. v. Tom T. GILLEN, Jr., et al.
    No. 56716.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Walter Pilcher, Jr., applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 741.

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


text:
    STATE of Louisiana ex rel. Nelson EARLIN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56719.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Nelson Earlin applying for Writ of Habeas Corpus, Certiorari, Prohibition or Mandamus.

Writ denied. The defendant does not deny the colloquy at the time of his plea of guilty summarized by the trial court’s judgment, nor that the plea bargain there described was kept. The allegations do not disclose a basis for post-conviction relief. See the reasons of the trial judge.


text:
    STATE of Louisiana ex rel. Billy Norman SANDERS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56720.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   .In re: Billy Norman Sanders applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Application denied; there was no double jeopardy. Applicant pleaded guilty to two separate and distinct offenses. State v. Pettle, La., 286 So.2d 625; State v. Richmond, La., 284 So.2d 317.


text:
    Thomas J. FEIBLEMAN et al. v. NEW ORLEANS COTTON EXCHANGE.
    No. 56724.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: New Orleans Cotton Exchange applying for writs of certiorari, mandamus and prohibition.

Writ refused. The ruling complained of is interlocutory. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Barney Ray GUY v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56727.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Barney Ray Guy, applying for writ of Habeas Corpus.

Writ denied. The colloquy at the time the defendant withdrew his appeal discloses a knowing and voluntary waiver. The exhibits also show that in accordance with the understanding at the time, the district attorney recommended commutation of his sentence.


text:
    STATE of Louisiana ex rel. Lawrence MATTHEWS, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 56728.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Lawrence Matthews, Jr. applying for writ of habeas corpus.

Application denied. Allegations by petitioner have been adversely decided against him either in his prior appeal (La., 292 So.2d 226) or on prior writ application. (La., 292 So.2d 496; La., 294 So.2d 835.)


text:
    Carlton WILSON v. CAPITAL CITY PRESS.
    No. 56732.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Carlton Wilson applying for cer-tiorari or writ of review to the Court of Appeal, Third Circuit, Parish of St. Martin. 315 So.2d 393.

Writ denied. On the facts found by the court of appeal, the result is correct.

DIXON, J., dissents from the denial.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Leslie G. EDWARDS.
    No. 56733.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: State of Louisiana applying for Writ of Certiorari.

Writ refused. On the showing made, we are unable to say that the trial judge abused his discretion. LSA-C.Cr.P. art. 851(5).


text:
    Rita Brown, wife of/and Lee H. BROWN v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 56736.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Rita Brown, Wife of/and Lee H. Brown applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 316 So.2d 194.

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

CALOGERO, J.,

dissents from denial. Conclusions of trial court based on matter of fact, particularly where based upon evaluation of the credibility of witnesses and the reasonableness and truthfulness of their testimony, should not be overturned except on a showing of manifest error.


text:
    Rita Brown, wife of/and Lee H. BROWN v. EMPLOYERS COMMERCIAL INS. CO. et al.
    No. 56751.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Billy D. Anderson, Jones Chemical, Inc. and Travelers Ins. Co. applying for certiorari or writ o.f review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 316 So.2d 194.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment complained of.


text:
    STATE of Louisiana ex rel. Keith GILMORE v. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 56743.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Keith Gilmore applying for Writ of Mandamus and Habeas Corpus.

Writ granted. It is ordered that a copy of this petition for habeas corpus be transmitted to the Criminal District Court for Orleans Parish, Section G, so that the trial judge may rule on it.


text:
    STATE of Louisiana ex rel. Frank LeBLANC v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56778.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Frank LeBlanc applying for writ of certiorari.

Writ denied. No merit in the application.


author: SANDERS, G. J., SUMMERS, J.,

text:
    STATE of Louisiana v. August MARRERO, Jr.
    No. 56772.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: State of Louisiana, applying for writs of Certiorari, Mandamus and Prohibition.

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

SANDERS, G. J.,

concurs in the denial being of the opinion that the ultimate question is whether the trial judge erred in weighing the evidence of probable cause. In his opinion, the showing made is insufficient to warrant the exercise of this Court’s supervisory jurisdiction.

SUMMERS, J.,

dissents, believing that the trial judge has no authority to order the State to disclose the identity of confidential informers. In this respect the ruling is in error.


text:
    Clinton B. GRIFFITH v. Malvern M. HASHA et al.
    No. 56781.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Clinton B. Griffith, et al. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 315 So.2d 778.

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


text:
    STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS v. Wilfred SOILEAU.
    No. 56760.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Wilfred Soileau applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 315 So.2d 384.

Granted. Applicant is entitled to reargument in the Court of Appeal under the provisions of Art. 5, Sec. 8, La.Const. (1974). The Court of Appeal’s denial of rehearing (July 24, 1975) is vacated, and the Court of Appeal is ordered to assign the case for reargument before a five judge panel.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Erlis OLIVER.
    No. 56773.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   .In re: Erlis Oliver applying for Writs of Review and Certiorari.

Writ granted. The conviction and sentence are vacated and the case is remanded for a new trial. See Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); State v. Moorcraft, 319 So.2d 386 (La.1975).

SUMMERS, J.,

dissents. See my dissent in State v. Moorcraft, 319 So.2d 386 (La.1975).


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. ROSS CONTINENTAL MOTOR LODGE, INC.
    No. 56784.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Ross Continental Motor Lodge, Inc., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Vernon, 315 So.2d 151.

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


text:
    Mrs. Evangeline Morgan Rivers, divorced wife of Stanley RIVERS v. FIREMAN’S FUND AMERICAN INSURANCE CO.
    No. 56738.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Mrs. Evangeline Morgan Rivers, Divorced wife of Stanley Rivers, applying for Certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 316 So.2d 182.

Application denied. The result is correct.


text:
    Lesley Wayne SIMMONS v. BEAUREGARD PARISH SCHOOL BOARD et al.
    No. 56742.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Beauregard Parish School Board, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 315 So.2d 883.

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

DIXON, J., is of the opinion the writ should be granted.


text:
    Artoun BAGHRAMIAN v. MFA MUTUAL INSURANCE COMPANY.
    No. 56747.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: MFA Mutual Insurance Company, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 315 So.2d 849.

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


text:
    Joseph L. LABORDE v. Roy O. MARTIN, Jr., et al.
    No. 56749.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Joseph L. LaBorde, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 316 So.2d 437.

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


text:
    Joseph L. LABORDE v. ROY O. MARTIN LUMBER CO., INC., et al.
    No. 56750.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Joseph L. LaBorde, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 316 So.2d 440.

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


text:
    STATE of Louisiana v. Arthur Charles MOORE.
    No. 56757.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Arthur Charles Moore applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. The trial court’s findings of fact are supported by sufficient evidence. The alleged deficiencies in the bill of information cannot be raised for the first time after conviction, State v. James, 305 So.2d 514 (La.1975).


text:
    STATE of Louisiana v. Elnoria MOORE.
    No. 56758.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Elnoria Moore applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. The application is denied for the reasons set forth in the denial today of the companion application, State v. Moore, La., 320 So.2d 208.


text:
    John S. BYE v. AMERICAN INCOME LIFE INS. CO.
    No. 56759.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: John S. Bye, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 316 So.2d 164.

Writ denied. No error of law.

CALOGERO, J., dissents from this denial.


text:
    STATE of Louisiana ex rel. Warren Paul LEDET v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56762.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Warren Paul Ledet applying for Writ of Habeas Corpus.

Writ denied. The petitioner’s allegations do not entitle him to post-conviction relief. See La.C.Cr.P. arts. 551, 555. See also Dell v. State of Louisiana, 468 F.2d 324 (CA 5, 1972), citing Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914).


text:
    Artoun BAGHRAMIAN v. MFA MUTUAL INSURANCE COMPANY.
    No. 56769.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Artoun Baghramian, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 315 So.2d 849.

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


text:
    Thomas A. HOBBS v. FIREMAN’S FUND AMERICAN INSURANCE COMPANIES et al.
    No. 56770.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Fireman’s Fund American Insurance Companies and Reserve Insurance Co., applying for writs of certiorari.

Writ denied. Insufficient showing to justify the exercise of our supervisory jurisdiction. Applicant will have an adequate remedy by appeal from any adverse final judgment.


text:
    Douglas D. LYNN v. Julia Kendall LYNN.
    No. 56775.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Douglas D. Lynn applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 316 So.2d 445.

Writ denied. Based on the assignment of errors by the husband, the result is correct.


text:
    STATE of Louisiana ex rel. Frederick THOMAS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56777.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Frederick Thomas applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. There was an insufficient showing to warrant the exercise of this court’s supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Joseph Murray TAYLOR v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56785.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Joseph Murray Taylor, applying for writ of Certiorari.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. Donald HUMBLE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56790.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Donald Humble applying for Writ of Habeas Corpus.

Writ denied. The showing made does not warrant the exercise of our supervisory jurisdiction in light of the evidence presented at evidentiary hearing on petitioner’s writ of habeas corpus.


text:
    STATE of Louisiana ex rel. Horace PIERSON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56791.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Horace Pierson applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Earl NEVIS and Joseph Hite.
    No. 56787.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Earl Nevis and Joseph Hite applying for supervisory writs, writs of cer-tiorari, prohibition, mandamus and for Stay Order.

Writ denied. Insufficient showing to warrant exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Earl M. BROOKS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56810.
    Supreme Court of Louisiana.
    Oct. 13, 1975.
   In re: Earl M. Brooks, applying for writ of mandamus.

Writ refused. The return of the trial judge shows that the habeas corpus petition was ruled upon on April 7, 1975. Hence, this application is now moot.


text:
    Charles Sheffield BROWN v. PLAQUEMINES PARISH BOARD OF SUPERVISORS OF ELECTIONS et al.
    No. 57019.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Plaquemines Parish Board of Supervisors of Elections, Samuel Charles Pizzolato, Rev. Joseph Noel Taylor and Roy Lyons, applying for writs of Certio-rari and Prohibition.

Granted. The case is assigned for argument on Monday, October 20, 1975 at 10:00 o’clock in the morning.


author: BEER, Judge.

text:
    Rita L. WARE v. F. C. DOYAL, Jr., Administrator, State of Louisiana Department of Employment Security and D. H. Holmes Co., Ltd.
    No. 5150.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Chaffe, McCall, Phillips, Toler & Sarpy by David McComb, New Orleans, and James A. McGraw, Dept, of Employment Security, Baton Rouge, for defendant-appellant.
    Fontenot & Mitchell by Guy O. Mitchell, III, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   BEER, Judge.

Appellee was employed as a sales clerk by appellant in Houma, Louisiana on October 9, 1971. On February 17, 1972 she gave two days notice and quit. Her resignation slip (written by her) states, as her sole reason for leaving: “We’re going to move to Central Louisiana.”

Consistent with her written statement, appellee did move to Ville Platte, where, about five months from the date of her resignation from Holmes, she gave birth. Seven and a half months after her baby’s birth (which was over a year after her resignation), appellee filed claim for unemployment benefits. Although she never sought to be employed again at appellant’s store and alleged for the first time that she had quit “because of pregnancy,” the State Department of Employment Security (hereafter, Department) determined that her “separation” was “under non-disqualifying conditions” making her eligible for unemployment compensation benefits even though Holmes had routinely informed the Department that Mrs. Ware quit her job to move to another part of the State.

Thereafter, Holmes, duly informed of the Department’s determination, appealed the ruling. As a result, a Notice of Hearing before an Appeals Referee was issued to Holmes and Mrs. Ware on April 2, 1973 and the hearing held on April 9, 1973. Mrs. Ware did not attend. After hearing testimony and considering the evidence submitted, the Appeals Referee held:

“The facts show that the claimant left her employment to establish her domicile with that of her husband in an area that made it impractical for her to commute to and from work.”

Mrs. Ware timely appealed this ruling to the Department’s Board of Review who affirmed the referee. She then appealed that ruling to the Thirteenth Judicial District Court which remanded the matter for further proceedings.

' In accordance with that remand, the entire matter was again aired at a full evi-dentiary hearing before the Department’s Chief Appeals Referee on August 13, 1974 and the evidence then and there adduced considered by the Department’s Board of Review which, on September 13, 1974 reaffirmed the original decision of the Appeals Referee noted above.

The written opinion of the Board of Review states:

“R.S. 23:1601(1) provides that a claimant shall be disqualified for leaving employment without good cause connected with the employment. Such disqualification shall continue until such time as the claimant has returned to work and earned wages equivalent to ten times the weekly benefit amount, and must then have been separated under nondisquali-fying circumstances.
“The Board of Review has carefully read all of the testimony and evidence, and the precedent that the Board of Review has followed, in previous decisions, has been that an employee who leaves available work to follow her husband to a new domicile, leaves under disqualifying circumstances. (Re: Lucille D. Sheffield, et al, versus J. Hadley Heard, Administrator, Number 44 — 201, 9th Judicial District Court, Parish of Rapides, State of Louisiana, and Docket Number 8545 of the Second Circuit Court of Appeals, decision dated January 7, 1947.)
“It is our opinion that the claimant was not asked to leave her employment, but she left for personal reasons.
“We, therefore, conclude that the previous decision of the Board of Review, rendered and mailed on July 6, 1973, upholding the decision of the Appeals Referee disqualifying the claimant effective February 19, 1972, shall remain in full force and effect.”

Thereafter, in accordance with LSA-R. S. 23:1634 the Board of Review made a return of its findings, conclusions and a transcript of proceedings to the Thirteenth Judicial District Court.

The court chose not to accept the findings of the Board of Review and rendered its own judgment which precipitated this appeal. We reverse and reinstate the holding of the Board of Review.

LSA-R.S. 23:1634 defines the scope of judicial review in this proceeding:

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” (Emphasis ours.)

There was no allegation of fraud here; thus, the only issues before the district court was the correctness of the legal conclusions reached by the Board.

The Referee and the Board of Review made certain credibility determinations in the course of these proceedings. Those determinations were supported by competent evidence, and were beyond the scope of revision or rejection on judicial review. See: Hall v. Doyal, 191 So.2d 349 (La.App. 3rd Cir. 1966).

The Board of Review determined -(on the basis of the same evidence considered by the district court) that Mrs. Ware left her employment with D. H. Holmes to go to Central Louisiana because her husband had a better job there. It was error for the district court to supplant that finding with its own opposite factual conclusion.

The district court, in written reasons, bases it reversal of the Board upon its own opposite factual determinations without indicating the reason why the Board’s findings of fact are to be ignored. Yet, a credibility determination must have been the sole basis for the district court’s contrary findings.

In this case, however, the administrative tribunal’s evaluation of credibility of witnesses is binding upon the court conducting judicial review of the agency’s determinations if, as here, the administrative findings of fact are supported by sufficient evidence. Thus, they are beyond the scope of revision or rejection upon judicial review.

A wife who leaves employment in order to move with her husband to another city is not entitled to benefits under the statute which requires severance of employment to have been for good cause connected with employment. LSA-R.S. 23:1601(1). See: Sheffield v. Heard, 92 So.2d 295 (La.App. 2nd Cir. 1957). Accordingly, the legal basis for the Board’s action does clearly exist.

Having reached these conclusions, we are obliged to reverse the judgment of the district court. The judgment is reversed and the holding of the Board of Review is reinstated at appellee’s cost.

Reversed.