author: TATE, Justice.

text:
    Succession of Mrs. Josie M. MITCHELL. Josie M. MITCHELL. Eddie MORRISON, Jr., et al., Plaintiffs-Appellants-Relators, v. Mrs. Annie B. Penny GRIFFIN et al., Defendants-Appellees-Respondents.
    No. 56466.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Vanue B. Lacour, Lacour & Calloway, Baton Rouge, for plaintiffs-appellants-rela-tors.
    Samuel Dickens, Baton Rouge, for defendants-appellees-respondents.
   TATE, Justice.

The central issue involves whether children, otherwise entitled to be legitimated by the marriage of their parents after their birth, Civil Code Article 198, are nevertheless deprived of this right because of their mother’s prior marriage years earlier to a man who disappeared shortly afterwards.

The district and intermediate courts rejected the claim of the children that they were legitimated by the marriage of their parents. These courts did so, because at the time of their births (some years after the first husband had disappeared) the mother’s prior marriage had not been dissolved, so therefore the first husband was presumed to be their legal father, Civil Code Article 184. 312 So.2d 130 (La.App. 1st Cir. 1975). These courts did so in reliance upon George v. Bertrand, 217 So.2d 47 (La.App.3d Cir. 1968), certiorari denied 253 La. 647, 219 So.2d 177 (La.1969) and Succession of Barlow, 197 So.2d 682 (La. App. 4th Cir. 1967), certiorari denied 250 La. 917, 199 So.2d 921 (1967).

We granted certiorari, 314 So.2d 735 (1975), to consider the correctness of the cited intermediate decisions in George and Barlow, as well as because, under the facts shown, such holding seemed inconsistent with the reasoning of this court in Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

The Facts

The undisputed facts show:

The plaintiffs, Eddie Morrison, Jr., et al., are the biological children of Eddie Morrison, Sr. and Mamie Thomas. The parents have lived together since 1930, although they were not formally married until 1941.

The children were born between 1931 and 1937. At the time of their births, they were registered under their Morrison surname as the children of Eddie, Sr. and Mamie Thomas.

The children were held out and known all their lives as the children of Eddie and Mamie. Eddie, Sr., raised them as their father, educated them (they all received college educations), and lived with them and their mother in their family home until his death in 1967.

This controversy arises in the succession of Eddie, Sr.’s sister, Josie Morrison Mitchell. She died without ascendants or descendants; therefore, her brothers and sisters and their descendants are her legal heirs. Civil Code Article 912. His children claim their predeceased’s father’s share of the estate by representation. Civil Code Articles 897, 898.

The decedent’s two surviving sisters obtained an ex parte judgment of possession to recognize them as her legal heirs. The plaintiffs nephews and nieces sue to set aside such judgment insofar as it failed to recognize them as heirs.

Mamie Thomas, the plaintiff’s mother, was married to Charles Connor in 1926. Shortly after the marriage, Connor went to Chicago, Illinois. Mamie has never seen Connor since, nor did any of the witnesses know of his whereabouts for many years, nor even if he were still alive.

The children of Mamie and Eddie Morrison, Sr. had never even met Charles Con-nor. He had never been considered their father; they had been raised as Eddie Morrison, Sr.’s children and considered so by the community in which they lived.

In 1941, when Mamie and Eddie Morrison, Sr., desired to formalize their relationship by marriage, they went to a lawyer. They told him that they did not know the whereabouts of Connor, although they had heard he was dead.

To avoid the possibility of a bigamous marriage, the lawyer advised them that Mamie should secure a divorce. An attorney was appointed to represent the absentee husband, and he endeavored to communicate with Connor at his last known address in Chicago. The letter was returned.

A divorce was granted Mamie from her first husband on the ground of the voluntary separation of many years. A few days later, Mamie and Eddie Morrison, Sr., were formally married.

Charles Connor as the Children’s Father: Civil Code Article 184.

The district and intermediate courts held that the biological children of Mamie and Eddie Morrison, Sr. were not legitimated by the subsequent marriage of their parents, as normally results from the subsequent marriage of the parents of children born previous to it. Civil Code Article 198 (to be quoted below). This holding was based upon the previously cited George and Barlow decisions of the intermediate courts.

These decisions held that, since the children were already by law the issue of the 1926 marriage between Charles Connor and Mamie Thomas by reason of Civil Code Article 184, they could not be legitimated issue of the second union.

Article 184 provides: “The law considers the husband of the mother as the father of all children conceived during the marriage.” Under the jurisprudence interpreting this article, a child born during a lawful marriage is conclusively presumed to be an issue of the marriage — “the husband of the mother is presumed to be the father of her children” — , unless within a short statutory period an action is successfully brought by the father or his heirs to disavow its legitimacy on the narrowly limited grounds permitted.

See: Civil Code Articles 191, 192; Tannehill v. Tannehill, 261 La. 933, 261 So.2d 619 (1972); Williams v. Williams, 230 La. 1, 87 So.2d 707 (1956); Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952); Kuhlman v. Kuhlman, 137 La. 263, 68 So. 604 (1915); Succession of Saloy, 44 La. Ann. 433, 10 So. 872 (1892).

The husband is accorded six months from the birth of the child to file the disavowal action, if he be in the parish where it is born. Article 191. The code provision further provides that, if the husband be absent at the time of the child’s birth, he must file the disavowal action “within six months after his return.” (Further, if the husband dies before the expiration of the delay so provided, the heirs are given a six-month period within which to contest the child’s legitimacy. Article 192.)

Charles Connor had disappeared from Louisiana in 1926. There is no evidence where he is or even if he was alive at the time the children were born or is now alive. Nevertheless, the trial court felt obliged under the George and Barlow, the cited intermediate court opinions, to recognize him as the children’s legal father.

The trial court noted: “This illogical holding is required by the jurisprudence. Notwithstanding the obvious fact of Eddie Morrison, Sr.’s paternity, his acknowledgement thereof, and his subsequent marriage to his children’s mother, the law has made it impossible for this trial court to do what justice and common sense demand; that is, to hold that the plaintiffs are privileged to inherit from their aunt as respresentatives of their father. Rather, this court must hold that because the plaintiffs’ mother was married to an absentee, Charles Connor, at the time the plaintiffs were born, they are the legitimate children of Charles Connor and because of their legitimate status, cannot be legitimated by the subsequent marriage of their biological father to their mother.”

Charles Connor’s Still-Existing Right of Disavowal: Civil Code Articles 191, 192.

The evidence does not negative an existing right in Charles Connor (if he is alive and if he returns to East Baton Rouge Parish) or his legal heirs to disavow the plaintiff children as his legitimate issue.

Charles Connor left the parish in 1926 and has never returned. The children were born during 1931 to 1937, during his absence. The evidence does not indicate he ever knew of their births.

If Connor is alive and returns (and certainly if he did not know until then of the children’s birth), he may still disavow them as his legitimate issue, providing he does so within six months of his return. Civil Code Article 191 (as amended in 1968). If he is already dead, or if he is now alive and subsequently dies, his legal heirs are given the right to question the children’s legitimacy within six months after they claim his estate, if any. Civil Code Article 192 (as amended in 1968).

In either event, the present children’s legitimacy as children of Connor can later be successfully attacked. Thus, this court should not fix now the status of the children as irrevocably Connor’s legitimate issue, when in fact their legitimacy is open to question. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972) (a decision apparently not called to the attention of the trial court).

In Babineaux, a child was born shortly after a second marriage. The issue concerned his right to sue for the wrongful death of his biological father, the second husband. The lower courts had dismissed his claim, holding that (since conceived during an undissolved first marriage, Article 182), the child was the legitimate issue of the mother’s first husband. We reversed, pointing out, 262 So.2d 335-38, that the first husband still had the right to disavow the child and that the lower courts were therefore in error in making the first husband’s presumed paternity under Civil Code Article 184 an unrebuttable presumption — when, in fact, it was still rebuttable.

If only because required by Babineaux, we must for similar reasons reverse. We prefer to rest our decision, however, on the application of Civil Code Article 198 to the present facts.

Legitimation by Marriage of Parents: Civil Code Article 198.

Article 198 now provides: “Children born out of marriage, except those who are born from an incestuous connection, are legitimated by the subsequent marriage of their father and mother, whenever the latter have formally or informally acknowledged them for their children, either before or after the marriage.”

As originally enacted by the Civil Code of 1808, it provided (almost verbatim to French Civil Code Article 331) that children born out of marriage, “except those who are born from an incestuous or adulterous connection”, “may be” legitimated by the subsequent marriage of their parents, “whenever the latter have legally acknowledged them for their children, either before their marriage or by their contract of marriage itself.” Civil Code of 1808, p. 48, Article 21. (Italics ours; subsequent legislative amendments removed these requirements.)

The article, as re-enacted in the Codes of 1825 (Art. 217) and the Code of 1870 (Art. 198), was amended by Act 50 of 1944. This amendment made legitimation by the subsequent marriage automatic {“are legitimated”) by the acknowledgement at any time, either before or after the marriage, “whenever the [parents] have formally [as before] or informally [new] acknowledged them for their children.” Pertinently, the article was further amended by Act 482 of 1948 so as expressly to remove the bar to legitimation of children born of an adulterous connection.

Thus, the legislative history of amendment to the code article indicates an express legislative intent to permit the legitimation of adulterous children by the subsequent marriage of their parents. This 1948 amendment was the latest of a series of legislative amendments favoring automatic legitimation by the subsequent marriage of their parents of children born outside of a marriage between them but admitted to be their biological children.

We should note that both Article 184 (the presumption of the husband’s paternity of children conceived during the marriage) and Article 198, as originally enacted by our 1808, 1825, and 1870 codes, were virtually verbatim translations of Articles 312 and 331 of the French Civil Code. By a series of judicial interpretations and legislative amendments, the French have also modified these articles so that, in France, under certain circumstances an adulterous child of a wife may be legitimated by her subsequent marriage to its biological father, even though the child is not disavowed by its mother’s former husband (its presumed father, since conceived during the former marriage). Planiol, Civil Law Treatise, Volume, Sections 1418, 1553 (LSLI translation, 1959).

In our opinion — especially in view of the series of prior broadening amendments requiring automatic legitimation by the marriage of the biological parents of children born out of wedlock — , the clear legislative intent of the 1948 amendment of Article 198 was to permit the subsequent marriage of the parents to legitimate all children (except incestuous) born of them before their marriage, including those who were adulterous.

Adulterous children, within this code sense, are indicated by Article 182 to be those conceived at a time when either their father or mother were married to someone else. This is the only classification of children in the code referring to adulterous issue.

The definition by this Article 182 is found within a section of the 1870 code defining illegitimate children. However, the broad legislative intent reflected by the 1948 amendment is to require automatic legitimation of adulterous children by the subsequent marriage of their biological parents. This broad intent does not, it seems to us, authorize a judicial narrowing of the Article’s application so as to include legitimation only of those adulterous children (a) whose mothers were unmarried at the time of conception or (b) who, if their mothers were married to someone else at the time of their conception, were technically as well as actually illegitimate issue of the first marriage because of the happenstance of her first husband’s timely disavowal (a rare occurrence, the jurisprudence reflects).

As Planiol noted, ascribing the reasons for the similar broadening in France of legitimation by marriage: “Legitimation has an incontestable moral influence. It induces the transformation of irregular households into legitimate families * * *Id., Section 1551, p. 858. See also Oppenheim, One Hundred Fifty Years of Succession Law, 33 Tul.L.Rev. 43, 53 (1958). The Louisiana legislative amendments, like the French legislation and judicial interpretations, reflect an attempt to have legal parenthood coincide with biological parenthood, at least where the parents establish a legal family entity through the civil relationship created by the marriage of the father and the mother.

We are unable to find any reason for any legislative intent to limit the benefits of legitimation by the marriage of the parents to some adulterous children (those born of a single woman and a married man) and not to others (those born of a married woman, either by a single or a married man), or to make legitimation by the marriage depend on the happenstance whether, at the time the legitimated status is contested, the mother’s first husband has timely disavowed the adulterous children as his legal issue.

Thus, in the present instance, the marriage of Eddie Morrison, Sr., and of Mamie Thomas legitimated their children by the express terms of Article 198, despite the circumstance that they may have been born of an adulterous connection if Mamie Thomas was at the time of their conception still married to another man (assuming he was still alive).

The Decisions in George and Barlow

In the present case, the district court and the court of appeal felt bound by the prior intermediate court decisions in George and Barlow, cited above, which reached a contrary result. They have been uniformly criticized for their inflexible, unrealistic, and unjust application of the presumption of paternity to one born during an undissolved marriage, where the mates have long been living separate and apart and the mother has been living in stable union with another, who is the actual biological father of the children. Pascal, Louisiana Succession and Related Laws and the Illegitimate, 46 Tul.L.Rev. 180 (1971); Tete, Work of the Louisiana Appellate Courts — Persons, 30 La.L.Rev. 171 (1969); Pascal, Work of the Louisiana Appellate Courts — Persons, 28 La.L. Rev. 316 (1968); Note, 16 Loyola L.Rev. 235 (1969).

We do not at this time reach the criticism of the inflexible presumption of paternity voiced by these scholarly critics. We think it sufficient-to note our disagreement with the interpretation by George and Barlow of the application of Article 198 to the present circumstance.

These decisions were based on the scheme of definitions represented by the Civil Code of 1870:

“Children are either legitimate, illegitimate, or legitimated.” Article 178. “Illegitimate children are those born out of marriage. Illegitimate children may be legitimated in certain cases, in the manner prescribed by law.” Article 180.

Since due to the presumed paternity of the husband of the mother, Article 184, the children were presumed to be legitimate issue of the undissolved marriage, the George and Barlow decisions reasoned that the children were not born “out of marriage.” Not being illegitimate children, the courts held that they could not be legitimated by the marriage of their parents, Article 198. The courts in effect held that the children could not be born “legitimate” as to the first marriage and “legitimated” by the second marriage.

This reasoning, however, overlooks the 1948 amendment’s express removal of the bar to legitimation of adulterous children by the marriage of their parents. As originally enacted in the 1870 code, illegiti-mates who were adulterous could not be legitimated by the marriage of their parents. Article 198. The definitions relied upon by George and Bertrand had to be understood as applying in their statutory context.

However, by the 1948 amendment of Article 198, adulterous children were to be legitimated by the subsequent marriage of their parents. The earlier statutory language must be re-interpreted as modified in the light of this later legislative amendment and the legislative intent thereby reflected. This intent, we have found, is to permit legitimation by the subsequent marriage of their parents of all adulterous children, whether technically illegitimate or technically legitimate at birth (whether or not subsequently disavowed by a long-separated husband if he returns or discovers his wife has had a child during his absence).

Effect of Legitimation by Second Marriage, Article 198, on Presumption of Legitimacy as Conceived During the First Marriage, Article 184.

What is the effect, if any, of the legitimation by the second marriage upon the children’s presumed status as the legitimate children of the first husband ?

Is, for instance, the effect of the legitimation by marriage to displace the presumption of paternity of the wife’s first husband? But see Dugas v. Henson, 307 So.2d 650 (La.App.3d Cir. 1975), certiorari denied 310 So.2d 851 (La.1975). Or does the legitimation- simply create in a second person the legal relationship of father to the now-legitimated child, without displacing any presumed similar legal relationship arising from the first marriage? See: Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328, 338 (1972).

The present facts indicate no substantial possibility that the courts will in fact ever be called upon to decide any practical consequences of the issue concerning the children’s continued legitimacy insofar as the long-disappeared Charles Connor. We therefore do not find it appropriate to decide this issue, especially without joinder of Connor as a party to the litigation.

The present litigation involves only whether the children born of Eddie Morrison’s (presumed) adulterous connection with Mamie Thomas were legitimated by their subsequent marriage. Article 198, as we have held, through its 1948 amendment requires that such legitimated status be accorded to these children.

Decree

For the reasons assigned, we hold that the plaintiff children are entitled to be recognized as the legitimated children of Eddie Morrison, Sr., and to share by representation of him in the decedent’s, their aunt’s, estate. We reverse the judgments of the previous courts, and we remand this case to the district court for further proceedings consistent with the views here expressed. All costs of appellate review are cast against the defendants’ appellees-re-spondents; All other costs to await final determination of these proceedings.

Reversed and remanded.

      . In fact, their right to do so was recognized without objection in the succession of their father’s other deceased sister, Delline, who died in 1972.

      . Mrs. Annie B. Penny Griffin and Mrs. Elvina L. McGee.

      . Babinewux concerned a child born during a second marriage (although conceived prior to it). Because the second marriage was bigamous, and because the child there concerned was not bom prior to it, we did not there reach the possible application of Civil Code Article 198, which is now urged as applicable under the present circumstances.

      . See Article 198, La.C.C.Comp.Ed., in 16 West’s LSA-C.C. pp. 124-25 (1972) for legislative texts.

      . According to Planiol, the French courts have held that upon the mother’s re-marriage to the children’s actual father, the presumption of her first husband’s paternity ceases to apply. Planiol, cited above, Section 1418. He also comments that it is “strange” that the children’s presumed prior legitimacy and the rights flowing therefrom should entirely depend on the subsequent decision to marry or not of their mother and her paramour.

      . Analogously, due to overlapping presumptions of legitimacy, a child may be presumed to be the child of two fathers, Civil Code Articles 184 — 192, 960, and inherit from both if not disavowed timely by either. Brouillette, Presumption of Legitimacy, 13 La.L.Rev. 587, 595-596 (1953). Likewise, an adoptive child may inherit from both his natural and his adoptive father. Article 214. Similarly, a man may simultaneously have the legal relationship of “husband” to two women, a legal wife and a putative wife, with the children of both considered his legitimate issue. Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947); see also Cortes v. Fleming, 307 So.2d 611 (La.1974).


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Jack R. RICKS.
    No. 56587.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Nathan S. Fisher, Williams & Fisher, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

A true bill for manslaughter was returned against Jack R. Ricks by the grand jury of East Baton Rouge Parish on November 29, 1973. La.R.S. 14:31. He was tried, found guilty on September 21, 1974, and sentenced to imprisonment at hard labor for ten years.

The sole issue presented by this appeal is defendant’s contention that the trial judge committed error in denying his motion for a directed verdict. La.Code of Criminal Procedure art. 778 in effect during 1974.

Manslaughter is defined in the Criminal Code as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person ; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Articles 30 or 30.1.
Whoever commits manslaughter shall be imprisoned at hard labor for not more than twenty-one years.

Late in the evening of October 12, 1973, Robert A. McCrary and Edgar Stokes entered Lavergne and Madge’s Lounge on Weller Avenue. At that time Jack Ricks and Ralph Caston and their girl-friends Susan Rader and Sally McClane were also patronizing the establishment.

While Ricks and Caston were shooting pool, the two girls left the tavern and sat on Rick’s car which was parked out in front of the bar. Shortly thereafter Mc-Crary and Stokes left the tavern. As they reached the girls they exchanged words with them. It appears that Stokes asked if the girls were lesbians while McCrary was discussing the fact that he came from Texas.

At this point Caston left the bar and suggested to Stokes that he move on. By that time Ricks was also outside the bar and Stokes was heading for McCrary’s car, which McCrary had driven to where Ricks had parked his auto. Then McCrary got out of his car armed with a sawed-off shotgun and pointed it menacingly at the two girls, Caston and Ricks, causing Ricks and his girl-friend to seek refuge behind Ricks’ car. After a few moments of this frightening ordeal, McCrary and Stokes drove off. Ricks armed himself with his pistol and Caston ran to his car to get his rifle.

These crucial facts are contained in Ricks’ confession introduced at the trial:

Well, then the car went on down the road, you know, and then it started weaving and then it got back over in the right lane and Ralph jumped out the car with his rifle. He said, ‘If you didn’t get him, I will,’ and he shot his rifle. But I think, uh, that guy was weaving before he shot his rifle so I figured I’d done gotten him, you know, and then it went way aways down and Bam, I thought it hit a telephone pole, I knew it hit something but I didn’t know what it was until I heard it on the news; and, uh, then Ralph got back in the car and started taking off. (emphasis added)

The two men returned to the tavern and picked up the two girls. Both girls testified that on the trip away from the tavern after the above incident Ricks stated that he believed that he had shot the man who was later identified as McCrary.

A motion for a directed verdict could only be granted under Article 778 in 1974 when there is a total lack of evidence to prove the crime or some essential element thereof. La.Code Criminal Procedure art. 778; State v. Douglas, 278 So.2d 485 (La.1973). There was ample evidence here.

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


author: BOLIN, Justice.

text:
    STATE of Louisiana v. Mottoria F. GILMORE.
    No. 56678.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Frank E. Brown, Jr., Huckaby, Piper & Brown, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee.
   BOLIN, Justice.

Defendant was convicted of the crime of forgery in violation of La.R.S. 14:72. After having been adjudicated an habitual offender he was sentenced to ten years’ imprisonment. La.R.S. 15:529.1. On this appeal defendant argues eight assignments of error. Finding no merit in these assignments, we affirm.

Defendant was prosecuted for having issued and transferred a forged check with intent to defraud and knowledge that it was forged. The check was drawn on the account of a Shreveport businessman and made payable to one Howard T. Bennett. At the time defendant issued and transferred the check to the Thrifty Liquor Store for payment, he presented for identification purposes a Veterans Administration Patient Data card made out in the name of Howard T. Bennett. In cashing the check the liquor store clerk utilized a device designed to imprint the data on the identification card onto paper inserted into the device. In this case, the card and the check were inserted into the device, and the impression of the identifying data appearing on the card was impressed on the check. When Thrifty presented the check to the bank upon which it was drawn for payment the check was dishonored and returned with the notation that the signature on the check did not agree with that contained in the bank’s files. Personnel of Thrifty brought the matter to the attention of the Shreveport Police Department, an investigation was undertaken, and this prosecution ensued.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns as error the trial court’s failure to sustain a pre-trial motion to suppress the physical evidence seized on the date of his arrest, the line-up identification by the person to whom he issued and transferred the forged check, the handwriting exemplars he was compelled to execute, and any inculpatory and/or exculpatory statements made while he was without the advice of counsel.

The basis for that part of defendant’s motion which sought suppression of the physical evidence involves an attack on the legality of the arrest based on the claim that the arresting officer did not have " * * * reasonable cause to believe that * * * [defendant] has committed an offense, although not in the presence of the officer;”. La.C.Cr.P. art. 213. Defendant argues the only information possessed by the officer at the time of the arrest was the stated belief of the bank teller from whom defendant attempted to obtain funds from the account of one Joe Jackson that defendant appeared to be the person who had previously passed a forged check to her (the Gosey check forgery). This information, defendant argues, did not supply the officer with reasonable cause to make a legal arrest.

At the time the officer made the arrest, he had more information than that asserted by defendant. During the hearing on the motion to suppress, the officer testified that prior to defendant’s appearance at the teller’s window, he had knowledge there had been a forgery of a check on the Gosey account and the check had been transferred to the same teller who was on duty on the day of the arrest. He also testified he was aware that the method used by the person who transferred the forged Gosey check was to approach the walk-up window, request a counter check, ask the teller to fill out the counter check, sign the check filled out by the teller, and transfer it in order to receive the funds. The officer testified that on the date of the arrest the first few steps of the same modus op-erandi were used by defendant in connection with the attempt to transfer a check drawn on the account of Joe Jackson. At this point, the teller related that the defendant appeared to be the same person who had passed the forged Gosey check. Upon hearing this information the officer assumed a standing position in order to obtain a view of the defendant through the teller’s window and simultaneously picked up the telephone to notify the auditing department of the suspected irregularity. Apparently upon observing the uniformed officer, the defendant abandoned his venture, left the counter check and hurriedly walked across the street. The officer exited the side door of the teller’s enclosure, shouted to defendant to stop, and sought identification of the defendant after he had effected the detention. He conducted the search after defendant denied having identification and denied having a wallet in his possession, even though the officer could “ * * * see one in his pocket.” The search revealed a wallet containing various papers and documents evidencing the names and bank account numbers of several individuals and a Veterans Administration Patient Data card in the name of Howard T. Bennett.

In State v. Di Bartolo, 276 So.2d 291 (La.1973), this Court discussed the prerequisites of a valid warrantless arrest. We stated:

“ * * * Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. * * * The quantum of information which constitutes probable cause must be measured by the facts of the particular case. * * ■ * A court, in determining probable cause, takes into account the total atmosphere of the case. * * * ”

Applying these accepted maxims to the case at bar, we hold the officer was in possession of ample information upon which to base a reasonable belief the defendant had committed an offense out of his presence, i. e., forgery of the Gosey check. Moreover, at the time of the arrest the officer could reasonably have believed the defendant had committed a felony (attempted forgery) in his presence. Therefore, we hold the trial court did not err in refusing to sustain the motion to suppress the evidence seized.

Defendant sought suppression of the line-up identification, arguing that his participation therein was involuntary. He admits signing a waiver of rights in connection therewith but contends he participated only because his earlier request for an attorney did not meet with compliance. He also claims he was informed by the police that he had no choice but to participate. Defendant testified concerning the allegation at the hearing on the motion to suppress the identification but each allegation was refuted by testimony of various officers who took part in the investigation and conducted the line-up. The officer who invoked the line-up proceeding testified he personally apprised defendant of his rights in connection with the line-up, obtained defendant’s waiver and his participation without the use of threats, abuse or other coercion, and was satisfied prior to the line-up that defendant’s participation was free and voluntary. The officer further affirmatively stated the defendant did not request that an attorney be present at the line-up.

It is clear the credibility of the opposing witnesses on the issue of the legality of the line-up proceedings was resolved adversely to defendant. In reviewing the pertinent portions of the record, we find no basis for disturbing the trial court’s determination. The United States Constitution’s Sixth Amendment right to counsel is not applicable in cases involving pre-indictment line-ups. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). This Court has consistently followed the Kirby holding. See, e. g., State v. Nero, 319 So.2d 303 (La.1975) and cases cited therein. This line-up was held prior to the filing of the bill of information in the instant case; hence, Kirby applies.

Defendant argues the handwriting exemplars and any inculpatory and/or exculpatory statements should have been excluded as “fruit of the poisonous tree” since the receipt of same stemmed from the allegedly illegal arrest. We find this argument lacks merit, in light of our holding that the arrest was legal, having been made with reasonable cause. At the hearing on the motion to suppress these items, defendant attempted to establish that the exemplars obtained by the police on the morning after his arrest, as well as any statements made, were not freely and voluntarily given. As in the case of defendant’s attack on the line-up, we note these allegations were painstakingly refuted by the State’s witnesses. Again, we find no basis for disturbing the trial court’s determination of the relative credibility of the witnesses and the ruling based thereon.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

This assignment of error complains of the trial court’s overruling of his objection to the State’s alleged use of its allotted peremptory challenges to exclude Blacks from the petit jury. He contends this prosecutor systematically used peremptory challenges to deny him a trial by an impartial jury which was fairly representative of the community. This Court has on numerous occasions held the motive for the exercise of peremptory challenges is not subject to judicial review, absent a showing of long-term systematic exclusion of Blacks, as enunciated in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). See, e. g., State v. Jack, 285 So.2d 204 (La.1973) and State v. Gray, 285 So.2d 199 (La.1973). No such showing has been made and we note that one of the five petit jurors was Black, notwithstanding the State still had one peremptory challenge left at the time it accepted the Black juror.

There is no merit in this assignment of error.

ASSIGNMENTS OF ERROR NOS. 3, 4 and 7

During the State’s opening statement defendant objected to mention of his having actually confected the forged check, as opposed to having merely issued and transferred it, as charged in the bill of information. Assignment of Error No. 3 complains of the trial court’s overruling defendant’s objection. Assignment No. 4 has reference to the trial court’s ruling admissible the original and supplemental handwriting exemplars used to prove the defendant had confected the forged check, in addition to having issued and transferred it. The trial court’s refusal to sustain the defendant’s objection to the testimony of a handwriting expert concerning the person who actually executed the signatures and other written portions of the forged check is the subject of defendant’s complaint in Assignment of Error No. 7.

Defendant argues that admitting evidence concerning the maker of the forged instrument was error in view of the fact that the information merely charged him with having issued and transferred the check.

The State argues the best evidence which it could present to show defendant knew the check to be forged, a fact it was required to prove, was evidence which tended to establish defendant had executed the writing himself. We agree that the evidence presented by the State did not constitute evidence of an extraneous offense, since in the act of executing the various written portions of the check which defendant then transferred was part of a continuous offense which constituted a single forgery.

The trial court did not err in its refusal to maintain defendant’s objection to the State’s opening statement and in allowing physical and testimonial evidence tending to prove defendant executed the forged check, in addition to transferring it.

ASSIGNMENT OP ERROR NO. 5

This assignment of error complains that the trial court erred in failing to grant a motion for mistrial made by defendant based on the State’s alleged failure to supply him with exculpatory evidence in its possession, despite an earlier motion filed on the basis of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady mandates that evidence favorable to the accused may not be suppressed by the prosecution after the accused has requested same.

The evidence which defendant contends is potentially favorable involves the inability of certain individuals who viewed the line-up in which he participated to identify him as the individual who passed to them other forged instruments. As pointed out by the State in brief, this information is irrelevant to the issues for determination in the instant prosecution. The inability of these individuals to identify defendant in connection with other forged instruments, not the subject of this case, could not possibly have availed defendant.

There being no Brady violation in this instance, this assignment accordingly lacks merit.

ASSIGNMENT OF ERROR NO. P

Defendant contends that during closing argument the prosecutor commented to the jury “that defense lawyers have a knack for putting prosecution witnesses on trial instead of the defendant.” Defendant claims this statement is a comment on his failure to take the stand and mandates the granting of a mistrial under La. C.Cr.P. art. 770(1).

The comment of the prosecutor which prompted the defense objection was not as quoted by the defendant but was as follows :

“ * * * [Tjhere is an old saying in the criminal law business that a defense counsel can put everybody on trial. He has put * * * [the liquor store clerk to whom the forged check was transferred] on trial. * * * ”

In the context of the closing argument of defense counsel, to which this rebuttal was directed, this remark was not prejudicial error and was not a comment on the failure of the defendant to testify. The record reveals defense counsel had just concluded his summation, during which he zealously attempted to point out whatever inconsistencies may have come to light during the testimony of the State’s witnesses. He questioned the possible motives and biases of the various State’s witnesses. While the trial court certainly had the discretion to require the prosecutor to restrict his rebuttal to the facts of the case, we cannot say the prosecutor’s comment constitutes serious error.

None of the arguments made in connection with this assignment of error warrant reversal of the defendant’s conviction and sentence.

ASSIGNMENT OF ERROR NO. 11

Defendant argues the ten-year sentence imposed constitutes cruel and unusual punishment because it is disproportionate to the offense. We note defendant was sentenced as an habitual offender, based on proof that this conviction constituted his third felony conviction. The penalty imposed was one-half the maximum sentence which could be imposed. This Court has held in cases too numerous to require citation that a sentence imposed within the statutory limitations set forth does not violate the Eighth Amendment prohibiting cruel and unusual punishment.

This assignment is devoid of merit.

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


text:
    Addis J. SIMON, Jr. v. Guy P. THIBODAUX et al.
    No. 56401.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Herbert O’Niell, Thibodaux, for plaintiff-applicant.
    John J. Hainkel, Jr., Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-respondents.
   SUMMERS, Justice.

Addis Simon brought this suit to recover against Guy P. Thibodaux, for damages, ■injuries and loss of wages he suffered as a result of a collision between his automobile and the sugar cane truck-trailer owned by Thibodaux. Wilton T. Hebert, employee of Thibodaux and driver of the truck at the time, and Southern Farm Bureau Casualty Insurance Company, Thibodaux’s liability insurer, were also made defendants.

On November 21, 1971 at approximately 5:30 o’clock in the morning Simon was driving his 1968 Ford two-door automobile in a northerly direction on Louisiana Highway No. 1, having just left Raceland headed for Thibodaux. He was traveling about 55 miles per hour, within the speed limit prescribed at that location. It was dark and his lights were burning. Sunrise on this day was at 6:30 a. m. Although he testified that a haze enveloped the road, impairing visibility to some slight degree, this testimony is not corroborated by other witnesses.

When Simon rounded a curve and his headlights again beamed on the road, he soon saw the large trailer loaded with sugar cane across his path in the road. He applied his brakes, skidded 46 feet and crashed into the rear of the trailer.

Just prior to the collision, as was Hebert’s custom, he arrived at defendant Thi-bodaux’s house to drive the truck-trailer loaded with sugar cane to the sugar refinery near the city of Thibodaux. The truck-trailer assembly was 46 feet long and 8 feet wide. With its load of sugar cane, it then weighed 48,680 pounds. While he was in the yard of Thibodaux’s house he walked around the truck trailer to inspect the lights and tires. He then entered the truck and drove along the private drive toward the highway. Because the highway was higher than the driveway, it was necessary to negotiate an incline as the truck-trailer neared the highway. As he approached the highway, but before entering, Hebert brought the truck-trailer to a stop about 20 feet from the highway and waited for oncoming traffic to go by. One car from the north and two from the south passed. He then proceeded in low gear onto the highway and turned left, heading in a northerly direction toward the city of Thibodaux.

The lengthy, heavily loaded truck-trailer moved slowly as it maneuvered into the right or north-bound lane of the highway. Due to its length and slow speed, however, Hebert had not completed the turning maneuver when Simon arrived at the point where the collision occurred. As Simon approached the truck the trailer was at an angle in the arc of the turn. Although it was principally in the right-hand lane, a part of the trailer had not yet cleared the western or south-bound lane. Simon could not avoid colliding with the trailer because he could not turn into the left or southbound lane on this narrow 20-foot highway.

This conclusion is supported by the damaged right rear of the trailer and the damaged left front of Simon’s Ford. In addition, the State Police Trooper who investigated the accident testified that Simon’s car remained in his right or north-bound lane. The damage, then, was not due to Simon’s attempt to turn to the right to avoid hitting the trailer as defendants contend. They argue that Hebert had completed the turning maneuver and was proceeding northward entirely in the right or north-bound lane. Thus the damage to Simon’s left front, and their right rear, could only result from Simon’s attempt to turn to the right in his effort to avoid the accident. The physical facts do not support the contention.

Although all lights on the truck and trailer were shining at the time of the collision, the truck’s headlights were obscured from drivers approaching from the rear by the bulk of the trailer and its load of sugar cane. The rear lights of the trailer were to some extent also obscured from drivers approaching from the rear by the angle of the trailer during the turning maneuver and the further fact that its rear lights were recessed somewhat in protective shields or hoods. These permitted full view by a driver directly behind the trailer, but the shields partially obscured the lights from drivers approaching at an angle.

The dark, the limited light on the rear of the trailer, the fact that the trailer edged into the traveled highway from a private driveway at a slow rate of speed at a point about 758 feet north of the curve which Simon rounded just before the collision, considered together, satisfy the Court that the driver of the truck was responsible for creating a dangerous situation to travelers approaching from the south by obstructing the highway an unreasonable length of time when his lights would not provide proper warnings.

Although the greater part of the testimony in this record concerns defendants’ attempt to establish that Simon was intoxicated at the time, neither the trial court nor the Court of Appeal found this to be a fact. Nor did they find that he was rendered incapable of driving properly by the small amount of alcoholic beverage he had consumed during the preceding ten hours. A review of the record supports this conclusion.

The duty of care imposed upon the driver of the truck-trailer is contained in the Highway Regulatory Act, and, so far as it is pertinent here, requires that “The driver of a vehicle about to enter ... a highway from a private road, driveway, alley or building . . . shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” La.R.S. 32:124.

The facts of this case considered in the light of this statute, undoubtedly support a finding that Simon was approaching “so close as to constitute an immediate hazard.” Perhaps with a faster and lighter vehicle, the maneuver from the private driveway onto the highway could have been accomplished before any vehicle could reach the point of impact from beyond the curve, but, quite obviously, this was not so where the entry onto the highway was being attempted by this heavily loaded truck-trailer slowly emerging from a private drive and ascending an incline from a dead stop in order to negotiate the entry.

The length of the truck-trailer assembly also added to the time needed to bring the entire assembly into the right-hand or north-bound lane of travel, in order that its hooded lights could be fully seen by a vehicle approaching from the rear in that same lane.

These combined circumstances, together with the clear duty imposed by the quoted statute and standards of reasonableness and ordinary care, convince us that the driver of the truck-trailer did not use the proper precautions to prevent this accident. Due to the serious consequences of highway accidents involving fast moving vehicles on busy highways, the duty to obey the rules of the road becomes more onerous as hazards multiply. Without prescribing every precaution which should have been taken in this case, we do say that every reasonable means available should have been used to ascertain that the entry onto the highway could be made in safety.

For instance, it could be said that safety should require that a flagman with a light be posted to warn travelers rounding the curve below the driveway, or, perhaps, special lighting should have been installed on the trailer’s sides to warn approaching vehicles while the trailer was at an angle during its turn into the highway. Robles v. Horton, 247 So.2d 628 (La.App.1971). Or, more importantly, Hebert should have obeyed the Highway Regulatory Act and not used the highway with this overloaded truck-trailer until thirty minutes after sunrise. La.R.S. 32:388.

In our view, the trial judge correctly found this to be an accident caused by entry of a truck onto a highway from a private drive under circumstances which made it impossible for the truck to complete its entry and turn onto the highway in sufficient time to avoid endangering oncoming traffic in the dark. Simon was not guilty of contributory negligence, and since we conclude that the truck-trailer operator was negligent, Simon should recover.

The award of the trial judge for the damages, medical expense, loss of wages and pain and suffering, which he itemized, in the sum of $17,118.70, plus the expert fee for a medical expert have been carefully reviewed. We do not find them to be seriously contested, and approve the awards.

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside, and the judgment of the trial court is reinstated and made the judgment of this Court.


text:
    John R. TARVER v. Hon. Wade O. MARTIN, Jr., Secretary of State, State of Louisiana, et al.
    No. 56828.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: John R. Tarver applying for writs of certiorari, prohibition, mandamus and stay order. 322 So.2d 829.

Application denied; on the facts found by the Court of Appeal there is no error in its judgment.

SUMMERS, BARHAM and CALO-GERO, JJ., are of the opinion the writ should be granted.


text:
    Rosalie SPAIN and Preston Broussard v. TRAVELERS INDEMNITY COMPANY and Interstate Fire and Casualty Company.
    No. 57170.
    Supreme Court of Louisiana.
    Dec. 3, 1975.
   In re: Travelers Insurance Company and Interstate Fire and Casualty Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion. 321 So.2d 10.

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:
    Robert HOWELL v. WINN PARISH SCHOOL BOARD et al.
    No. 57178.
    Supreme Court of Louisiana.
    Dec. 5, 1975.
   In re: Robert Howell applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Winn. 321 So.2d 420.

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.

DENNIS, J., recused.


text:
    Conrad STALLINGS v. W. H. KENNEDY & SON, INC.
    No. 57184.
    Supreme Court of Louisiana.
    Dec. 5, 1975.
   In re: Conrad Stallings applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of More-house. 321 So.2d 411.

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.

DENNIS, T., recused.


text:
    Luther CHISM, Jr. v. KAISER ALUMINUM & CHEMICAL CORP.
    No. 57192.
    Supreme Court of Louisiana.
    Dec. 5, 1975.
   In re: Luther Chism, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 320 So.2d 566.

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


text:
    STATE of Louisiana v. Al ROMANO and Charles Turner.
    No. 57226.
    Supreme Court of Louisiana.
    Dec. 12, 1975.
   In re: Al Romano and Charles Turner applying for remedial writs and stay order.

Writ denied. There is an adequate remedy for review in the event of conviction. This court will not interrupt the orderly procedure in the trial court absent palpable error and great prejudice.


text:
    STATE of Louisiana v. Bobbie L. McSPADDIN, et al.
    No. 57232.
    Supreme Court of Louisiana.
    Dec. 15, 1975.
   In re: State of Louisiana through Harry F. Connick, District Attorney, Parish of Orleans applying for writ of certiorari.

Writ denied. No error of law.

SUMMERS, J., dissents from the denial of this writ.


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

text:
    STATE of Louisiana ex rel. Ernest C. K. BROWN v. C. Murray HENDERSON, Warden Louisiana State Penitentiary, et al.
    No. 57140.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Ernest C. K. Brown, applying for writ of certiorari and/or habeas corpus.

Writ granted. Evidentiary Hearing ordered as to allegations of ineffective assistance of counsel.

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

dissent from granting of writ. In their opinion, the showing made is insufficient.

MARCUS, J., dissents from the granting of this writ.


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

text:
    STATE of Louisiana ex rel. Charles Donald BYRD, a/k/a Charles Hancock v. C. Murray HENDERSON, Warden Louisiana State Penitentiary.
    No. 57116.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Charles Donald Byrd, applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ granted; Evidentiary Hearing ordered to determine whether applicant was an indigent at the time he was denied court appointed counsel.

SANDERS, C. J.,

dissents from granting of writ. An evidentiary hearing was held as to indigency, and he accepts the finding of the trial judge.

SUMMERS, J.,

dissents from the granting of this evidentiary hearing, being of the opinion that the finding of the trial judge refutes the allegations of this application.

DIXON, J.,

concurs in the grant; there has been no hearing on this habeas application.


text:
    NASSAU REALTY CO., INC. v. Mrs. Edna Joann Guidry, wife of/and Alvarez A. BROWN, Sr.
    No. 57222.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Mrs. Edna Joann Guidry, wife of/and Alvarez A. Brown, Sr. applying for remedial writs.

Granted. (See Order).

The petition of the relator m the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Henry J. Roberts, Jr., Judge of the Civil District, Court for the Parish of Orleans to transmit to the Supreme Court of Louisiana, on or before the 5th day of January, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 29th day of March, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Hayward CLOFER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57133.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Hayward Clofer applying for writ of habeas corpus and remedial writs.

Writ denied. Only inmates in the custody of Department of Corrections are entitled to good time. La.R.S. 15:571.3, 571.4. The original sentence on revocation of probation, improperly allowing such credit, could subsequently be corrected as not in accordance with law, La.C.Cr.P. art. 882, as in effect was done by the judgment of Nov. 6, 1975.


text:
    STATE of Louisiana ex rel. Bertrand BROWN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57142.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Bertrand Brown applying for writ of mandamus.

Writ denied. The relator’s new trial, ordered by this court, is fixed for January 19, 1976. Insofar as his application might be considered a request for release on bail, we do not consider it, since it has not been presented to the trial court.


text:
    Anthony Kermit LEMOINE v. Harry COUVILLON.
    No. 57148.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Anthony Kermit Lemoine, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 321 So.2d 37.

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


text:
    STATE of Louisiana ex rel. Lawrence LITTLE v. STATE of Louisiana, et al.
    No. 57156.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Lawrence Little applying for writ of mandamus.

Writ denied. Relator is not entitled to the relief sought.


author: SUMMERS, J., TATE, J.,

text:
    STATE of Louisiana ex rel. Mark I. SULLIVAN v. Elayn HUNT, Director, Dept. of Corrections, and C. Murray Henderson, Warden, Louisiana State Penitentiary.
    No. 57157.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Mark I. Sullivan, applying for writ of mandamus.

Writ denied. Application incorrectly filed in this Court without prior application to Court of Appeal.

SUMMERS, J.,

is of the opinion there is no merit to this application and it should be denied without requiring application to the Court of Appeal.

TATE, J.,

concurs for the additional reason that the remedy may have been by appeal to the intermediate court.


text:
    STATE of Louisiana ex rel. Thomas MARTIN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57160.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Thomas Martin, applying for writ of habeas corpus, mandamus, certiora-ri and prohibition.

Application denied: The sentencing court has jurisdiction over this petition for habeas corpus relief. Louisiana Code of Criminal Procedure articles 352 and 362(2). The defendant is not entitled to the relief sought: A person convicted of a crime is not entitled to time spent in custody for an earlier offense, even though the prosecution for it is subsequently dismissed. Cf., Louisiana Code of Criminal Procedure article 880 (as amended in 1970) and State ex rel. Johnson v. Henderson, 303 So.2d 741 (La.1974).


text:
    Robert TAILLAC v. WESTMINISTER CORP., et al.
    No. 57161.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Robert Taillac applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 320 So.2d 580.

Application denied; no error of law in the judgment of the court of appeal.


text:
    STATE of Louisiana v. Donald WILLIAMS.
    No. 57152.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Donald Williams applying for supervisory writs of certiorari, prohibition and mandamus.

Application denied; since applicant was represented at the revocation hearing, the lack of counsel for the preliminary hearing is of no importance; the evidentiary hearing disclosed a factual basis for the revocation.


text:
    STATE of Louisiana ex rel. Lucas McCURADY v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 57158.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Lucas McCurady applying for writ of certiorari and habeas corpus.

Writ refused. There is no merit in the application for the reasons expressed by trial judge.


text:
    STATE of Louisiana ex rel. Leroy MINOR v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57159.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: Leroy Minor applying for writ of habeas corpus and certiorari.

Writ denied. According to the colloquy between the sentencing judge and applicant, there is no merit to this application.


text:
    STATE of Louisiana v. William Wayne MESHELL.
    No. 57231.
    Supreme Court of Louisiana.
    Dec. 17, 1975.
   In re: William Wayne Meshell applying for writ of habeas corpus.

Writ denied. No abuse of the trial judge’s discretion is shown.


text:
    In the Interest of Tina Marie GRAS.
    No. 57029.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Tina Marie Gras, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 320 So.2d 578.

Writ granted. This matter is not moot because although the juvenile has been released from custody of the Louisiana Department of Corrections, she remains under the effect of the prior adjudication and subject to the juvenile court’s jurisdiction. We read her “Motion for Release” to encompass more than simply a request to be released from the custody of the Department of Corrections. The case is remanded to the Court of Appeal for decision on the merits.


text:
    STATE of Louisiana v. Edward R. SANCHEZ.
    No. 57162.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Harry F. Connick, District Attorney, Parish of Orleans applying for writs of certiorari, mandamus and prohibition.

Writ not considered. Insufficient showing that writ timely filed. See Rule 10, section 5 (b) of our rules.


text:
    STATE of Louisiana ex rel. Feltus B. ANDERSON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57166.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Feltus B. Anderson applying for writs of habeas corpus, mandamus and other remedial writs.

Writ denied. The relator is not entitled to a jury trial on the enhancement of penalty as a multiple offender. 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). We had previously rejected the other contentions. (La., 310 So.2d 845).


text:
    STATE of Louisiana v. Leon G. SOUBY.
    No. 57221.
    Supreme Court of Louisiana.
    Dec. 19, 1976.
   In re: Leon G. Souby applying for writs of certiorari, review and mandamus.

Writ granted. (See Order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Wallace A. Edwards, Judge of the 22nd Judicial District, Court for the Parish of St. Tammany, to transmit to the Supreme Court of Louisiana, on or before the • 5th day of January, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 2nd day of April, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: TATE, J.,

text:
    STATE of Louisiana ex rel. Christon L. MOORE, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57207.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Christon L. Moore, Jr., applying for writ of habeas corpus.

Application denied for the reasons stated by the trial judge.

TATE, J.,

fully concurs. No statements of the defendant were introduced at the trial on the merits. The alleged Miranda violation was not prejudicial. Docket No. 54,926. Insofar as the other contentions, the evidentiary hearing of November 8, 1973, found within our docket No. 54,926, discloses no factual merit to them.


text:
    STATE of Louisiana v. Thomas CRUDDAS and Michael Dixon.
    No. 57198.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: State of Louisiana, applying for writ of certiorari to review ruling of Criminal District Court, Parish of Orleans.

Writ not considered. Not timely filed. See Section 5(b), rule 10 of our rules.


text:
    STATE of Louisiana ex rel. Herman WILLIAMS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57122.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Herman Williams applying for writ of mandamus and/or remedial writs.

Writ denied. The trial judge acted on application for habeas corpus December 15, 1975. Thus, this application for mandamus is moot.


text:
    STATE of Louisiana v. Lonnie R. WOODS.
    No. 57131.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Lonnie R. Woods, applying for writs of certiorari, prohibition and mandamus.

Writ refused. The ruling of the trial judge, based on the evidentiary hearing, is correct.


text:
    STATE of Louisiana ex rel. Richard Ray CREDILLIE and Billy Jack Jameson v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 57164.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Richard Ray Credillie and Billy Jack Jameson, applying for writ of habeas corpus.

Writ refused. There is no merit in the application in the light of the record showing the colloquy prior to entry of guilty plea.


text:
    STATE of Louisiana ex rel. Josie LOWE v. J. D. MIDDLEBROOKS, Warden, Louisiana Institute for Women.
    No. 57167.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Josie Lowe applying for writ of habeas corpus.

Application denied; according to the trial judge, applicant’s appeal is being perfected by her court-appointed attorney.


text:
    Marguerite M. COLVIN v. LOUISIANA HOSPITAL SERVICE, INC.
    No. 57168.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Louisiana Health Service and Indemnity Company (formerly named Louisiana Hospital Service, Inc.) applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 321 So.2d 416.

Writ denied. No error of law in the court of appeal judgment.


text:
    Irving ARMSTEAD, Sr., Individually, etc. v. The AETNA CASUALTY AND SURETY COMPANY.
    No. 57171.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Irving Armstead, Sr. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 322 So.2d 299.

Writ refused. No error of law.


text:
    Rose PHILLIPS and Ruby McKinney v. James J. BARRAZA et al.
    No. 57177.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Government Employees Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 320 So.2d 587.

Application denied; the judgment is not final because the case has been remanded for trial.

MARCUS, J.,' is of the opinion that this writ should be granted.


text:
    Captain Henry J. COOK, III v. Mrs. Jo Ann Milano COOK.
    No. 57181.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Captain Henry J. Cook, III applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 320 So.2d 612.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. Bennie J. HUDGENS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57187.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Bennie J. Hudgens applying for writ of habeas corpus.

Writ denied. The relator’s contentions are without factual merit. See colloquy of April S, 1973 at time of arraignment and evidentiary hearing of June 4, 1975.


text:
    STATE of Louisiana ex rel. Terry PIERRE v. C. Murray HENDERSON, Warden Louisiana State Penitentiary.
    No. 57186.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Terry Pierre, applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Writ denied. There is no error of law in the ruling of the trial judge. See reasons assigned.


text:
    STATE of Louisiana ex rel. Earl M. BROOKS v. C. Murray HENDERSON.
    No. 57185.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Earl M. Brooks, applying for writ of habeas corpus.

Writ refused. No merit in application.


text:
    Rufus W. ASHLEY v. NISSAN MOTOR CORP. IN U. S. A. et al.
    No. 57188.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Rufus W. Ashley applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 868.

Writ denied. Although we do not approve that portion of the opinion which permitted the policy limits to be withheld from the trial jury, we cannot say that under the facts the result is incorrect.

CALOGERO, J., dissents from refusal to grant.


text:
    Rose PHILLIPS and Ruby McKinney v. James J. BARRAZA et al.
    No. 57191.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: United States Fidelity and Guaranty Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 320 So.2d 587.

Writ denied. Judgment not final because the case is remanded.

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


text:
    MONROE REDEVELOPMENT AGENCY v. T. D. L. CORPORATION.
    No. 57193.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: T. D. L. Corporation applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of Ouachita. 321 So.2d 426.

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

DENNIS, J., recused.


text:
    MONROE REDEVELOPMENT AGENCY v. Frank MERKEL.
    No. 57194.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   •In re: Frank Merkel applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Ouachi-ta. 321 So.2d 429.

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

DENNIS, J., recused.


text:
    Cathy Ellen CARAWAY v. John David CARAWAY.
    No. 57196.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Cathy Ellen Caraway applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 321 So.2d 405.

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

DENNIS, J., recused.


text:
    Harold COGSWELL v. TOWN OF LOGANSPORT.
    No. 57197.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Town of Logansport applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of DeSoto. 321 So.2d 769.

Writ denied. No error of law in the judgment complained of.

DENNIS, J., recused.


text:
    STATE of Louisiana v. Michael GUILLEMET.
    No. 57199.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Michael Guillemet applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. There is some evidence to support the conviction.


text:
    STATE of Louisiana ex rel. William A. DOYLE, Jr. v. Hon. Oliver P. CARRIERE, Judge Division H Civil District Court New Orleans, Louisiana, et al.
    No. 57206.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: William A. Doyle applying for writ of mandamus.

Writ denied. The allegations present claims for relief which should be presented in the pending divorce suit in civil district court.


text:
    STATE of Louisiana v. Freddie DUHON.
    No. 57247.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Freddie Duhon applying; for writ of certiorari or mandamus.

Writ denied. The showing made does not justify the exercise of our supervisory jurisdiction at this time, without prejudice to the relator’s right to re-urge this contention on his appeal.

DIXON, J., dissents from the denial. The constitutional right seems clear.


text:
    Melvin BAUDOIN and Errol Falcon v. Hon. George R. COOK, Sheriff in and for the Parish of Sabine and Hon. Jack Burgess, Judge, 11th Judicial District Court, Parish of Sabine, etc.
    No. 57253.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Melvin Baudoin and Errol Falcon, applying for remedial writs and bail.

Application denied. The conviction and sentence are operative until set aside. Hence, relators are not entitled to bail during the litigation of the guilty plea.


text:
    Mildred Rojas, wife of/and Eddie COLLINS et al. v. Mack C. WHITTINGTON et al.
    No. 57209.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Mildred Rojas, wife of/and Eddie Collins, Jules Leon Nunez and Bert C. LeBlanc applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 322 So.2d 847.

Writ denied. Judgment of the court of appeal is correct.


text:
    Henry KING et al. v. Ford MARIONNEAUX.
    No. 57195.
    Supreme Court of Louisiana.
    Dec. 19, 1975.
   In re: Henry King, et al. applying for writ of review and/or certiorari.

Writ denied. With regard to the assignment urged, we find no error in the ruling requiring joinder of the other parties as necessary. La.C.Civ.P. art. 644.


text:
    Betty Jean Guidroz REED v. Charles Glynn REED.
    No. 57278.
    Supreme Court of Louisiana.
    Dec. 23, 1975.
   In re: Betty Jean Guidroz Reed applying for writs of certiorari, review, prohibition and stay order.

Granted. The ex parte order dated December 12, 1975 is set aside as having been improvidently issued under these circumstances.


author: BEER, Judge. PER CURIAM. BEER, Judge.

text:
    DIBERT, BANCROFT & ROSS COMPANY, LTD. v. WESTINGHOUSE AIR BRAKE COMPANY.
    No. 6998.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Limited Rehearing Nov. 11, 1975.
    Rehearing Expanded Nov. 18, 1975.
    Amended and Rendered Dec. 18, 1975.
    Writ Refused Feb. 6, 1976.
    Pittman & Matheny, Iddo Pittman, Jr., Hammond, for plaintiff-appellee.
    Nicaud, Justrabo & Rousset, Rene R. Ni-caud, Hugh H. Brister, New Orleans, for de f endant-appellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

Appellant, Westinghouse Air Brake Company (hereafter, Westinghouse), was the manufacturer of a very large “off highway” vehicle to be used for heavy load carrying. In conjunction with this endeav- or Appellee, Dibert, Bancroft & Ross Company, Ltd. (hereafter, Dibert), contracted with Westinghouse to provide certain metal castings which were to conform to a pattern provided by Westinghouse.. A total of four such castings were actually produced by Dibert and shipped to Westinghouse. Upon receipt of the first two castings in March of 1972 Westinghouse discovered certain defects in same and called Dibert’s attention thereto by correspondence. Notwithstanding this, payment in full for the first two castings was sent by Westinghouse to Dibert in April 1972 — apparently as the result of a mistake in internal office procedure.

At about the same time, Dibert shipped the third and fourth castings which were received and used by Westinghouse but not paid for by them.

Substantial exchange of correspondence took place between the parties subsequent to the abovedescribed events all centering around the contention by Westinghouse that they should not be obliged to pay for castings number 3 and 4 because of the defective condition of castings number 1 and 2.

However, litigation did not commence until Dibert instituted suit on September 6, 1973 seeking payment for castings number 3 and 4.

On October 19, 1973 Westinghouse answered the suit and reconvened on a basis, which, in our view, clearly sounds in redhi-bition. Various additional pleadings were filed including an answer to the reconven-tional demand and thereafter the matter was tried on December 3,1974.

In the course of that trial counsel for Dibert sought to except to the redhibitory claim filed by plaintiff in reconvention, Westinghouse. In open court he stated: “Now, Your Honor, at this time I would like the court’s permission to file an exception for [sic] prescription for any rehabili-tory [sic] claim . . . ” In response the court stated: “It will be necessary for you to file an exception of prescription . ” Counsel replied: “I will go ahead and file one, if the Court permits.” The court responded: “So ordered.”

No written exception of prescription was ever filed in the trial court. However, on December 4, 1974 the court handed down a written judgment on the exception stating: “It is ordered that the exception of prescription herein, be and the same is hereby overruled.”

On the same day the court rendered judgment, with written reasons, in favor of Dibert and against Westinghouse in the sum of $3,432.15 and, further, dismissed the reconventional demand of Westinghouse.

LSA-C.C.P. Article 852 provides that pleadings, including exceptions, “shall be in writing.” No where in this record is there a written exception of prescription except that which was filed by plaintiff-appellee in this court on June 25, 1975.

Under the somewhat unusual circumstances existent herein, we deem it necessary to look further into the matter of the exception of prescription as we have concluded that appellant’s reconventional demand sounds in redhibition but might have merit if it is properly before us.

Although LSA-C.C.P. Article 961 provides that motions may be made orally during trial, no such provision exists with respect to exceptions. Thus, we conclude that an exception, in order to be properly before the court, must be in writing. Even though Dibert’s counsel obtained an oral order permitting him to file the exception of prescription, the exception itself was never filed in writing in the trial court. Accordingly, the judgment overruling that exception handed down by the district court on December 4, 1973 was a nullity, without force or effect and the fact that Dibert did not answer the appeal with respect thereto is of no consequence.

Under these circumstances it is in order that we consider the exception of prescription filed by Dibert in this court on June 25, 1975 for LSA-C.C.P. Article 2163 provides that prescription may be raised for the first time on appeal in this manner. Accordingly, we give consideration to the exception of prescription filed by Dibert to the reconventional demand of Westinghouse and conclude that it has merit and should be maintained. The re-conventional demand, even if meritorious, sounds in redhibition and must be dismissed since actions so sounding prescribe one year from discovery. Furthermore, the claim in redhibition is not saved from prescriptive disability by having been pled defensively in response to Dibert’s main demand for payment for castings 3 and 4. There was no redhibitory vice attributable to those castings — the proven defects were in castings 1 and 2. Thus, the ability to urge redhibition as a defense, even though the action is otherwise barred by prescription, is not applicable to this situation. For these reasons, it is not necessary for us to consider the redhibitory claim of Westinghouse on its merits. We turn, then, to the sole remaining issue which is the correctness of the trial court’s judgment on the main demand.

There is no serious contention that castings 3 and 4 should not be paid for, having been manufactured by Dibert, shipped by them to Westinghouse and subsequently incorporated into the vehicle manufactured by Westinghouse. Thus, the judgment of the trial court is essentially correct in making an award on the main demand although same should have been in the amount of $3,517.15 plus $85.00. The trial court was incorrect in subtracting the $85.00 cost of crating the Westinghouse patterns. This amount should have been added to the judgment to cover the cost of crating the patterns owned by Westinghouse and presently in the possession of Dibert, disposition of which will be covered in the judgment of this court. However, Dibert did not answer the appeal and thus we are procedurally powerless to remedy this small error.

Accordingly, it is ordered, adjudged and decreed that the exception of prescription filed in this court by Dibert, Bancroft & Ross Company, Ltd. to the reconventional demand of Westinghouse Air Brake Company be and the same is hereby maintained; and the reconventional demand is dismissed;

It is further ordered, adjudged and decreed that the judgment of the Civil District Court for the Parish of Orleans dated December 4, 1974 overruling the exception of prescription be and the same is hereby recalled, nullified and set aside;

It is further ordered, adjudged and decreed that the judgment of the Civil District Court for the Parish of Orleans dated December 4, 1974 in favor of the plaintiff, Dibert, Bancroft & Ross Company, Ltd. and against the defendant, Westinghouse Air Brake Company, in the full sum of $3,432.15, together with legal interest thereon from date of judicial demand, until paid, and for all costs of these proceedings, be and the same is hereby affirmed; and

It is further ordered, adjudged and decreed that the patterns owned by Westinghouse Air Brake Company and presently held by Dibert, Bancroft & Ross Company, Ltd. be crated by Dibert, Bancroft & Ross Company, Ltd. and shipped to Westinghouse Air Brake Company, actual cost of shipping to be borne by Westinghouse Air Brake Company but crating and all other costs attendant upon preparation of same for shipping to be the responsibility of Dibert, Bancroft & Ross Company, Ltd.

Each party to this appeal is to bear its own cost in both courts.

Amended and affirmed.

ON APPLICATION FOR REHEARING

Appellant’s application for rehearing has been considered.

LSA-C.C. Article 2498 and Wolff v. Warden, 141 So. 821 (La.App. 2nd Cir.1932) to the contrary notwithstanding, we believe that there may be merit to the contention of able counsel for Westinghouse to the effect that LSA-C.C.P. Article 424 is entitled to such liberal construction as to provide Westinghouse with a legal basis upon which the open account claim of Dibert, Bancroft & Ross Company, Ltd. can be reduced or offset, and that such right has not prescribed.

If the redhibitory vice of the first two castings can be the basis of reduction or offset in connection with the open account suit seeking payment for the second two castings and such has not prescribed, then Westinghouse will be entitled to a measure of relief for there is little doubt of the redhibitory vice of the first two castings. Furthermore, we believe that the record is sufficiently complete to permit us to judicially determine the extent to which the open account claim for castings three and four should be reduced if we determine that the claim for an offset is viable and has not prescribed.

Thus, we would limit our rehearing (and restrict the ambit of counsels’ briefs) to the legal issue noted above. We are particularly interested in a consideration of whether or not LSA-C.C.P. Article 424 should be restricted by application of the rationale ip Wolff v. Warden, supra, or whether the theory of “Quae temporalia sunt ad agen-dum perpetua sunt ad excipiendum” (Things which are temporary for the purposes of attack are permanent for the purposes of defense), applies to the facts of this case.

Accordingly, it is ordered, that a limited rehearing (on briefs only) be and the same is hereby' granted in this case restricted to the legal issue hereinabove described;

It is further ordered, that counsel for appellant, Westinghouse, shall have ten days from the date of this order to file such additional brief as they may deem appropriate and that counsel for appellee, Dibert, Bancroft & Ross Company, Ltd., shall have five days thereafter to file such response as they may deem appropriate.

In all other respects the application is denied.

Limited rehearing granted.

Before SAMUEL, GULOTTA and BEER, JJ.

PER CURIAM.

Able counsel for plaintiff-appellee, Dibert, Bancroft & Ross Company, Ltd. calls our attention to an implied but unintended limitation in our order granting a limited rehearing in this matter.

It was not our intention to so limit the rehearing that it would impair Dibert’s right to question the extent or, indeed, the existence of a redhibitory vice attributable to the first two castings.

Accordingly, our original order is amended to include this area of consideration and counsel for both parties should deal with same in their briefs.

In view of this development and in order to insure adequate time for responses to this ruling the time period for the filing of briefs as noted in our original order shall run from the date of this order.

Rehearing expanded.

Before SAMUEL, GULOTTA and BEER, JJ.

ON LIMITED REHEARING

BEER, Judge.

On October 9, 1975 we rendered our original opinion in this matter. On November 11, 1975 we granted a limited rehearing and, on November 18, 1975 expanded the range of that rehearing. This amount of activity is, we believe, due at least in part to the closeness of the questions presented and the astuteness and industry of able counsel for both sides who have exhibited the highest traditions of the appellate bar in their exhaustive research regarding this interesting case, even though it does not involve great sums of money.

We have made a careful review of the record in response to issues raised in the supplemental memoranda and have concluded that there is sufficient overall con-nexity between the ordering and subsequent delivery of castings number 1 and 2 and castings number 3 and 4 to permit Westinghouse to make certain limited use of its otherwise prescribed redhibitory action in connection therewith. The full price for castings 1 and 2 was paid by mistake. We believe that all the factors relative to the ordering, delivery, subsequent limited use and ultimate discarding of castings 1 and 2 would have formed a proper basis for reducing their price by $500 each (a total of $1,000).

Because of the connexity noted above and having determined that there were redhibitory defects in castings 1 and 2 we conclude, that this offset can and should be applied against the open account claim by Dibert against Westinghouse for castings 3 and 4 which, all agree, were not defective.

Accordingly, our original opinion of October 9, 1975 is now amended to the extent that the monetary award in favor of Dibert, Bancroft & Ross Company, Ltd. and against Westinghouse Air Brake Company is reduced from $3,432.15 to $2,432.15 and, in all other respects, remains unchanged.

Amended and rendered.

      . The exception of prescription was filed on June 25, 1975 in this court. From that date until the matter was set down for oral argument on September 4, 1975 no application for remand for the purpose of consideration of this plea was filed by Westinghouse Air Brake Company, in accordance with the provisions of Article 2163 thus obviating the necessity for remand.

      . LSA-C.C.P. Article 424 would permit Westinghouse to interpose redhibition as a defense • — even though it had prescribed as a main demand — had Dibert’s open account claim been with respect to castings 1 and 2. However, the defects in castings 1 and 2 were neither incidental to or connected with the open account claim for castings 3 and 4. Note Wolff v. Warden, 141 So. 821 (La.App. 2nd Cir.1932).


author: LANDRY, Judge.

text:
    Alvin Joseph BREAUX v. Lottie Porche BREAUX.
    No. 10506.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      H. Minor Pipes, Houma, for appellant.
    Van Ellender, Houma, for appellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

Lottie Porche Breaux, defendant-wife (Appellant), appeals from judgment granting her former husband, Alvin Joseph Breaux, plaintiff (Appellee), a final judgment of divorce on grounds of adultery. We affirm.

The sole issue presented is whether the trial court applied the proper standard of proof of adultery and whether plaintiff-ap-pellee discharged the burden of proof incumbent upon him.

Appellant obtained a judgment of separation from Appellee on September 10, 1974. For a short period following the separation decree, Appellant resided with her daughter-in-law. Due to alleged har-rassment by Appellee, which reputedly interrupted the daughter-in-law’s household, Appellant obtained new lodgings on November 1, 1974. On this latter date, Appellant commenced renting one bedroom of a two bedroom trailer owned by Walton Ledet, a former brother-in-law of Appellant, the correspondent in this divorce action. In addition to the bedroom, Appellant rented, for the sum of $75.00 monthly, half of a garage situated on Ledet’s premises. The record discloses that Appellant partially supported herself by selling vegetables in which enterprise she utilized a pickup truck.

The Ledet trailer consisted of two bedrooms, a single bath and a kitchen and combination dining and living room area. The record discloses that Ledet had formerly rented one bedroom to other persons on several occasions, including single men and married couples but never before to a single woman. It is readily conceded by all concerned that Appellant lived in the trailer for two and one-half months, until January 15, 1975, when Ledet requested that Appellant move to make the room available to Ledet’s son and daughter-in-law who were moving in from another state. Appellant then moved to the home of her sister, in which accommodation was not previously possible because the sister’s son was then living there.

The record is barren of direct evidence of adultery in this instance. Plaintiff-Ap-pellee relies solely upon circumstantial evidence to establish the alleged adultery. Consequently, the precise issue is whether Appellee has met the burden of proving adultery by circumstantial evidence as required by the jurisprudence of this state. We find that plaintiff has met this burden.

Conflict exists between the testimony of Appellant and Appellee regarding Appellant’s relationship with Ledet. Appellee testified that before the separation, Appellant advised him that Appellant loved Led-et and that Appellant planned to leave Ap-pellee very shortly. Appellant denied being in love with Ledet, and also denied telling Appellant that she was in love with Ledet and planned to leave.

Appellant concedes that she did go out socially with Ledet on a few occasions during the period of Appellant’s residence in Ledet’s trailer home. A fair summation of the testimony on this point is that Appellant frequently went out in her own truck to places where Ledet was also present, and that infrequently Appellant and Ledet went out together in a truck which Ledet owned.

Appellant produced several witnesses (mostly family and close friends) who visited Appellant often while Appellant lived in the trailer. In effect these witnesses testified that they called at all times of the day, and none ever observed any evidence of an amorous relationship between Appellant and Ledet. Both Appellant and Ledet denied having ever engaged in any intimacy with each other.

It is settled jurisprudence that adultery may be established by circumstantial evidence inasmuch as the very nature of the act makes direct evidence thereof most difficult. Kieffer v. Heriard, 221 La. 151, 58 So.2d 836; Coston v. Coston, 196 La. 1095, 200 So. 474; Robicheaux v. Robicheaux, La.App., 165 So.2d 550.

Circumstantial proof of adultery requires production of indirect or circumstantial evidence which fairly and necessarily justifies and supports the conclusion that adultery was committed. The degree of proof of adultery by circumstantial evidence is similar to proof of guilt in a criminal proceeding in that the evidence must establish guilt of the party accused to the exclusion of any other reasonable hypothesis. Pilgrim v. Pilgrim, 235 La. 112, 102 So.2d 864; Hayes v. Hayes, 225 La. 374, 73 So.2d 179; Withers v. Withers, La.App., 296 So.2d 466; Daigle v. Daigle, La.App., 222 So.2d 318; Morris v. Morris, La.App., 152 So.2d 291.

In this instance, the trial court, which saw and heard the witnesses testify, and which is in the best position to determine their credibility, concluded that adultery had been established by a preponderance of evidence. The trial court also found that in view of the evidence, it was inconceivable in the court’s mind that adultery had not been committed.

Conclusions of fact by a trial court are entitled to great weight and are not to be disturbed on appeal except on a showing of manifest error, especially when predicated upon an evaluation of the testimony of conflicting witnesses. Rayner v. Rayner, 216 La. 1099, 45 So.2d 637; Withers v. Withers, above; Veazey v. Nassar, La. App., 285 So.2d 263; Dubois v. Falgout, La.App., 268 So.2d 70; Daigle v. Daigle, above.

We find that the record supports the conclusions reached by the trial court.

The judgment of the trial court is affirmed; Appellant to pay all costs of these proceedings.

Affirmed.


author: COVINGTON, Judge.

text:
    Franklin D. PAUL v. Edwin W. EDWARDS, Governor of the State of Louisiana et al.
    No. 10474.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.

      James F. Mulla, Jr., New Orleans, for appellant.
    Janice Gonzales, Metairie, for appellees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge.

On October 13, 1965, plaintiff-appellant plead guilty to auto theft and was given a three (3) year term in the Louisiana State Penitentiary, with the sentence being suspended and the then defendant placed on two years of active probation. On March 26, 1975, a Petition for Writ of Mandamus was brought against the Governor, Attorney General and Director of Louisiana Department of Corrections to compel the issuance of an “automatic pardon” to plaintiff-appellant, under the provisions of Article 4, Section 5(E) of the Louisiana Constitution of 1974 and LSA-R.S. 15:572.

The defendant filed an exception of no cause of action which was maintained by the trial court. We affirm.

Article 4, Section 5(E) of the Louisiana Constitution of 1974, states;

“(1) The governor may grant reprieves to persons convicted of offenses against the State and, upon recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.”

It was stipulated by all parties that had this offense occurred after the adoption of the new constitution, the appellant would be entitled to an automatic pardon. The question is, therefore, whether Section 5 (E) of Article 4 of the new constitution for the State of Louisiana is to be given retroactive effect.

Two sections of Article 14 of the Constitution of 1974, pertinent to this question, are included in the transitional provisions and prescribe that the status of certain rights shall not be affected by the new constitution. They are;

“Section 23. All writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, rights or causes of action, contracts, obligations, claims, demands, titles, and rights existing on the effective date of this constitution shall continue unaffected. All sentences as punishment for crime shall be executed according to their terms.”
* * * * * *
“Section 26. Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

The general rule in Louisiana, both constitutional and statutory, is that laws have prospective and not retrospective operation; Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3rd Cir., 1974), writ denied 305 So.2d 134. An exception to the rule as announced in the Doucet case exists where the statute is remedial or procedural in nature; Parish of Calcasieu, Calcasieu Par. Pol. J. v. Traigle, 296 So.2d 418 (La.App. 1st Cir., 1974). Another exception to the general rule announced in Doucet is where the words employed show a clear intent to have a retroactive effect; Shreveport Long Leaf Lumber Co., Inc. v. Wilson, 195 La. 814, 197 So. 566 (1940); Prothro v. City of Natchitoches, 265 So.2d 242 (La.App. 3rd Cir., 1972).

The trial court had the case of Williams v. Louisiana Board of Alcoholic Beverage Control, 317 So.2d 247, (Ninth Judicial District Court, Rapides Parish), as a guide and we think that although that decision was not binding on the trial court in the instant case, it did serve as a guide to the decision rendered. Also in evidence was the opinion of the Attorney General of the State of Louisiana, wherein he stated, referring to the Williams’ decision:

“As the latter interpretation is the most recent pronouncement of a court of record, this is the interpretation which should be followed by all state agencies pending a definitive ruling by the Supreme Court of Louisiana.”

Of course, neither is the opinion binding upon the courts.

We have carefully examined Article 4, Section 5(E) of the Louisiana Constitution and conclude that the statute is neither remedial nor procedural; furthermore, the words employed failed to show a clear intent to have the statute applied retroactively-

Moreover, the clear and unambigious language of Article 14, Sections 23 and 26, is mandatory to the effect that this Constitution shall not be retroactive. We are obligated to and do adhere to the mandate of the constitution. Therefore, the “automatic pardon” provisions are applicable only to sentences imposed on or after January 1, 1975, the effective date of the Constitution of 1974.

Affirmed.