author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Errol BERNARD.
    No. 61078.
    Supreme Court of Louisiana.
    May 22, 1978.
    C. James Hicks, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In a trial by jury defendant Errol Bernard was found guilty of second degree murder and sentenced to life imprisonment at hard labor. Four assignments of error are urged on this appeal.

Assignment 1: Defendant testified on his own behalf. He stated that on April 18, 1975, at approximately 11:30 a. m., he was walking in the 2400 block of Third Street in the city of New Orleans on the way to his mother’s house in the Magnolia Project. As he approached the victim Vernon Frankie Joseph and another man, Joseph grabbed defendant by the collar and started to punch him. A scuffle ensued in which Joseph grabbed defendant around the neck and choked him, declaring “I’m going to kill you, nigger.” Defendant then drew his pistol from his belt beneath his shirt and shot Joseph.

Although defendant had never seen Joseph before, he did recognize Joseph’s blue jeans and sweat shirt to be institutional clothing similar to that worn by prisoners at the work release program not far away.

Under these circumstances, considering the assault, his assailant’s garb and the threat to kill him, defendant testified he was in fear of his life. He further testified that Theodore Hunter was in Joseph’s company at the time and because of his proximity he should have heard Joseph’s threat to kill him. After the shooting, defendant testified that he asked Hunter why Joseph assaulted him since he did not know Joseph. However, Hunter testified that although he heard the shot he was across the street at the time, facing the opposite direction and did not see the shooting or hear the threat.

Following the shooting defendant walked away heading for the Magnolia Project. Police were called to investigate. They questioned several people in the neighborhood, none had actually seen the struggle and Shooting. However, some did see defendant standing over the victim’s body after the shooting. Two of these witnesses accompanied the investigating officers to search for the defendant. They found him about four blocks from the scene in the courtyard of Magnolia Project. He was not hiding and made no effort to flee. A .38 caliber pistol was in his possession. He was arrested and driven to central lockup. Soon thereafter defendant gave a statement in which he stated the facts testified to at the trial.

A medical doctor from the Coroner’s office testified that the gunpowder and the imprint of the gun barrel on the victim’s side where the bullet entered convinced him that the victim was shot at very close range. One of the officers testified that at the time of the arrest defendant stated, “I had an argument with him and shot him.” The officer testified that the shooting occurred in broad daylight. According to the other arresting officer, defendant was discovered walking in a “stunned” manner at the site of his arrest four blocks from the shooting. There were no eyewitnesses to the shooting.

In his opening statement defense counsel announced that the accused would rely upon self-defense in its case. In his presentation defense counsel sought to establish by the foregoing evidence the victim’s hostile demonstration or overt act in order that he might introduce evidence of the victim’s bad character. In this connection the defense sought to introduce in evidence an affidavit dated July 29,1958, and signed by a police officer. The affidavit filed in the Criminal District Court of Orleans Parish charged that the victim, Joseph, committed aggravated battery upon his wife Verna with a pop bottle. Defense counsel also tried to introduce a written statement given to the police by Dorothy Jordan on December 26, 1958 wherein she declared Joseph raped her.

The trial judge ruled these documents inadmissible, basing his ruling on the hearsay character of the documents, neither party who signed them having been called as witnesses to testify to their content. He was also of the opinion that no overt act had been shown.

Assuming, without deciding, that there was appreciable evidence of an overt act, the question is then whether the evidence of the July 1958 aggravated battery and the December 1958 rape was admissible.

Once an overt act is established, evidence pertaining to the victim’s character is admissible to show defendant’s reasonable apprehension of danger which would justify his conduct and to help determine who was the aggressor. State v. King, 347 So.2d 1108 (La.1977).

In order for character evidence to be admissible to show defendant’s reasonable apprehension of danger, it must be shown that the defendant knew of the victim’s prior acts of violence or reputation for violence. In this case defendant, by his own admission, did not know the victim and had never seen him. Because he did not know the victim, he could not have known that in 1958 the victim committed an aggravated battery on his wife and raped Dorothy Jordan, almost seventeen years prior to the alleged shooting. Thus, this evidence pertaining to the victim’s violent character would not be admissible to show defendant’s apprehension of danger in order to justify the shooting.

If the evidence is sought to be introduced to help determine who was the aggressor, the evidence, by statute and decisions of this Court, must be limited to general reputation of the victim, not specific acts. See State v. Boss, 353 So.2d 241 (La.1977). As explained in Boss, evidence introduced to prove a party’s character in order to corroborate a contention that he was the aggressor in an encounter must conform with the rule of Section 479 of Title 15 of the Revised Statutes. By that section “Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.”

For this reason the evidence of the 1958 battery and rape was inadmissible for the purpose of supporting a claim that the victim Joseph was the aggressor in the 1975 encounter with defendant. “Only evidence of general reputation, not evidence of specific acts or personal opinion, is admissible to establish who was the aggressor in the conflict.” State v. Boss, supra. The defense made no effort to introduce evidence of general reputation. This assignment is therefore without merit.

Assignment 2: Defendant contends the trial judge made two improper remarks which influenced the jury to the defendant’s prejudice. Defense counsel was interrogating the defendant who had taken the stand in his own behalf. In an effort to explain why defendant was carrying the .38 caliber revolver used to kill Joseph, defense counsel established that defendant had been shot in the stomach some time in the past while standing on the porch of a friend’s apartment in the Magnolia Project. Having testified that he was shot in the stomach, defendant was asked, “How long is the scar?” Defendant replied, “About—about twenty inches.” At this point the trial judge remarked, “What’s that got to do with it? Maybe the doctor had a big hand so he had to put a big scar there.”

At another time thereafter in defense counsel’s interrogation of defendant, the following occurred:

“Q. By institutional clothing, what do you mean?
A. I mean clothing that you are officiated—that are given to you when you are institutionalized in the jail, prison, or whatever, even the hospital. You’re issued a robe and pajamas, and in jail you are issued jeans and sweatshirts, not in this jail particularly, not back here, but at one time or another they used to do it, but they stopped all this now.
BY THE COURT: How do you know this?
A. I had been back here before, your Honor.”

This record does not disclose that the defense either objected to the trial court’s comment, moved for a mistrial or asked that the jury be admonished to disregard the comment. La.Code Crim.Pro. arts. 770-71. Therefore, the trial judge had no opportunity to cure the alleged error. Consequently the matter is not properly presented for review in this Court. La.Code Crim. Pro. art. 841.

Assignment 3: During defendant’s testimony it is contended the trial judge questioned him concerning prior arrests contrary to the proscription of Section 495 of Title 15 of the Revised Statutes that “. . . no witness . . . can be asked on cross-examination whether or not he has ever been indicted or arrested . .” No defense objection was made and the matter is not reviewable. La.Code Crim.Pro. art. 841.

Assignment 4: It is asserted that it was error for the trial judge to refuse to grant a motion for a continuance to allow defendant additional time to locate witnesses for the defense.

Claudette Pollard, an alleged eyewitness to the shooting, had been subpoenaed by the defense but could not be located. Additional time was needed, according to the defense, to locate her in order that she might be subpoenaed and compelled to attend the trial and testify on behalf of the defendant.

On the day the case was set for trial defense counsel filed a written motion wherein these facts were set forth. It was also alleged that new witnesses and new evidence had recently been brought to counsel’s attention; two of these witnesses were out of town and arrangements were being made for them to be present at the trial shortly.

When the motion for continuance was urged during the trial it was denied. The trial judge was of the opinion that Claudette Pollard could not have been an eyewitness because of the evidence already received at the trial to the effect that all persons in a position to observe what had happened had been interviewed. Pollard was not among them.

Furthermore, a continuance shall not be granted after the trial has commenced. La. Code Crim.Pro. art. 708. The facts to which the two out-of-state witnesses were expected to testify, showing the materiality of their testimony and necessity for their presence at trial, were not set forth in the motion for continuance as required by Article 709 of the Code of Criminal Procedure. Defendant had been charged since May 1975 and had ample time to locate and subpoena these witnesses before this January 1976 trial. There was no error in the ruling denying the continuance.

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


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Irving SCOTT, Milton Reed, Jr. and Robert Desdunes, Jr.
    No. 61101.
    Supreme Court of Louisiana.
    May 22, 1978.

      John M. Lawrence, Orleans Indigent Defendant Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick Noriea, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendants, Irving Scott, Milton Reed, Jr. and Robert Desdunes, Jr. were charged by bill of information with armed robbery in violation of R.S. 14:64. Following a trial by jury defendants were found guilty. Defendants Reed and Desdunes were each,sentenced to thirty (30) years at hard labor while defendant Scott, found to be a multiple offender, was sentenced to forty (40) years also at hard labor. On appeal defendants rely upon six (6) assignments of error, consolidated into four arguments, for a reversal of their convictions. We have reviewed each of the assignments and finding merit in none of them we affirm defendants’ convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

By these assignments defendants contend that the trial court erred in finding the state’s answers to defendants’ bill of particulars good and sufficient. More particularly, defendants contend that the state should have been required to provide in its answer to the bill of particulars: (1) whether defendants were arrested separately or together; (2) whether force was used by any of defendants which resulted in injury to the alleged victim; and (3) whether any of the defendants attempted to flee during the “res gestae of the offense.”

Article 1 Section 13 of the Louisiana Constitution of 1974 requires that “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” One of the methods through which this is accomplished is the bill of particulars. In addition to informing an accused of the charges against him the bill of particulars also aids a defendant in preparing a proper defense and in forming the basis for a plea of double jeopardy in any subsequent prosecution. State v. Miller, 319 So.2d 339 (La.1975).

However, it is well settled by numerous decisions from this Court that a bill of particulars can not be used to discover the state’s evidence or the details of the state’s case. State v. Meunier, 354 So.2d 535 (La.1978); State v. Gray, 351 So.2d 448 (La.1977).

The information sought by defendants in the present case was not necessary to inform defendants of the charges against them, to aid in a proper defense, or to preserve any future pleas of double jeopardy. Defendants’ requests were directed at discovering details of the state’s case. The trial judge therefore correctly ruled that defendants were not entitled to such information.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 4

Defendants contend in this assignment that the trial court erred in admitting into evidence testimony by one of the arresting police officers which defendants contend constituted inadmissible hearsay evidence. After reviewing the testimony of the officer we find no merit to this contention. The testimony was related to investigation procedures and did not constitute hearsay testimony. State v. Murphy, 309 So.2d 134 (La.1975). Furthermore, even if we were to find the testimony inferentially hearsay we would not find its admission reversible error. C.Cr.Pro. art. 921.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

In defendants’ fifth assignment of error they allege that the trial court erred in allowing a police officer to testify to defendants’ out-of-court identification before the identification had been testified to by the person who made that identification, 1. e. the victim. Defendants contend that the testimony by the officer was hearsay and thereby inadmissible.

Even if we were to agree with defendants’ contention that the particular testimony was hearsay we would still not find reversible error in its admission. In State v. Ford, 336 So.2d 817 (La.1976) this Court was presented with this precise legal issue. In that case we determine that the testimony was merely cumulative and corroborative of the testimony of the witness himself. As the victim in the present case did later testify to his out-of-court identification of defendants we find no reversible error in this assignment. State v. Ford, supra.

ASSIGNMENT OF ERROR NO. 7

In defendants’ final assignment they urge that the trial court erred in denying their motion for a new trial. The basis for defendants’ motion was the state’s failure to prove an essential element of the crime, i. e. use of a dangerous weapon.

Defendants contend that the instrument used by the perpetrators was a toy pistol and that a toy pistol is not a dangerous weapon. There is no case in our jurisprudence precisely on point.

In the case at bar the victim testified that the robbers used a “small caliber” gun and that it placed him in fear of his life. There was thus some evidence of a dangerous weapon irrespective of the fact that the arresting police officers attempted to connect defendants with a toy pistol and irrespective of whether that particular instrument was or was not a dangerous weapon. Thus, defendants’ motion for a new trial based upon a contention of no evidence of an essential element of the crime of armed robbery is without merit. For a similar treatment of this issue see State v. Elam, 312 So.2d 318 (La.1975).

Decree

For the foregoing reasons we hereby affirm defendants’ convictions and sentences.

AFFIRMED.

      . Defendants’ assignment of error number six has been specifically abandoned.

      . Defendants did urge other grounds in support of their motion for a new trial. However, since they are essentially the same errors discussed in previous assignments they will not be discussed again here.

      . But see State v. McClinton, 329 So.2d 676 (La.1976); State v. Sonnier, 317 So.2d 190 (La.1975); State v. Elam, 312 So.2d 318 (La.1975); State v. Forbes, 310 So.2d 569 (La.1975); State v. Leak, 306 So.2d 737 (La.1975); State v. Levi, 259 La. 591, 250 So.2d 751 (1971); State v. Johnston, 207 La. 161, 20 So.2d 741 (1944).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Willie C. RYAN.
    No. 61116.
    Supreme Court of Louisiana.
    May 22, 1978.
    Loyola Law School Clinic, Arthur A. Lemann, III, Supervising Atty., Deidre R. Lloyd, Student Practitioner, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On November 11, 1976 defendant was charged by bill of information with possession of heroin with intent to distribute. After trial by jury, defendant was found guilty of possession of heroin. He was sentenced as a multiple offender to serve twelve years imprisonment at hard labor. Two assignments of error are presented on appeal.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying a motion to suppress evidence seized at the time of his arrest.

The evidence adduced at the hearing on the motion to suppress is as follows.

Shortly after noon on November 3, 1976, Officers Earl Johnson and Jacob Johnson of the New Orleans Police Department observed the defendant walking along a sidewalk clutching a yellow object in his hand. The officers were patrolling in an unmarked car and had no information concerning the activities of the defendant. Officer Jacob Johnson testified that as they passed the defendant in their car, it appeared that he was trying to conceal what he was holding by turning his hand away from the street. Their suspicions aroused, the officers circled the block and came upon the defendant still carrying the object, on another street. The testimony of the two officers differed as to the events that followed. Officer Jacob Johnson testified that he jumped out of the car immediately after seeing that the defendant was still carrying the object. Officer Jacob Johnson stated that the defendant threw the object to the ground as soon as he saw the officer leave the car and start in his direction. Officer Jacob Johnson walked past the defendant to retrieve the object while Officer Earl Johnson stopped the defendant. Officer Earl Johnson, on the other hand, testified that the defendant dropped the object before Officer Jacob Johnson jumped out of the car. There was no other testimony about the seizure.

The object was a manila envelope containing approximately fifty heroin capsules.

The defendant argues that the evidence was seized pursuant to an illegal arrest or detention and therefore should have been suppressed. The State argues that the envelope was abandoned without any prior intrusion by the police and therefore the motion to suppress was properly denied.

In State v. Smith, 347 So.2d 1127 (La.1977), we set out the following principles relative to evidence seized pursuant to an investigatory stop:

“The right of the police to make an investigatory stop must be based upon reasonable cause sufficient to cause them to suspect the detainee of past, present, or imminent criminal conduct. State v. Weathers, 320 So.2d 892 (La.1975); State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). As these decisions note, the reasonable cause must be determined under the facts of each case, by whether the officers had sufficient knowledge of particular circumstances sufficient to permit them to infringe upon that individual’s right to be left alone free of government interference with his liberty.
If, however, the officers do not have the right to make an investigatory stop, evidence seized or otherwise obtained as the result thereof cannot constitutionally be admitted into evidence against a criminally accused. State v. Truss, 317 So.2d 177 (La.1975); State v. Finklea, 313 So.2d 224 (La.1975); State v. Jones, 308 So.2d 790 (La.1975); State v. Saia, 302 So.2d 869 (La.1974). This inadmissibility extends to property dropped or abandoned in response to an illegal stop. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970).” 347 So.2d at 1128.

The officers in the present case clearly did not have reasonable cause to stop the defendant when they first saw him carrying the yellow object. They had no knowledge of his participation in criminal activity and the observation that the defendant was carrying an object with his hand turned away from the street falls woefully short of establishing reasonable cause to stop. The question thus presented is whether the evidence was abandoned in response to an illegal stop. Essential to this inquiry is a determination of the point at which the officers’ actions infringed upon the defendant’s right to be left alone.

In State v. Saia, 302 So.2d 869 (La.1974), two police officers noticed Charlene Saia leave an address known to be an outlet for drugs. When the police car pulled beside Saia as she was walking down the sidewalk, she put her hand inside the waistband of her pants and turned to walk in the other direction. The officers surmised that she was concealing contraband in her pants so they followed her back to the original address. As Saia was walking up to the house, the officers left their car and overtook her from the rear. When they grabbed her near the door of the house she again reached inside her waistband and withdrew what appeared to be a glassine enveoppe containing heroin. The State argued that the police had probable cause to arrest the defendant and seize the heroin when they saw her take the envelope from her pants. We agreed, but found that was not determinative because the officers had unlawfully intruded upon her freedom of movement before seeing the heroin. The following language is pertinent to the issue at hand in the present case:

“The seizure in the instant case occurred when the police officers sprang from their car and overtook the defendant in front of 619 General Taylor. As Justice Harlan noted in his concurring opinion in Terry v. Ohio, supra, [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889], the officer must first have the right not to avoid the person under suspicion but rather to approach him and by so doing intrude into the person’s freedom of movement. The police cannot approach citizens under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual under Terry v. Ohio, supra. Police officers cannot actively create ‘street encounters’ unless they have knowledge of suspicious facts and circumstances sufficient to allow them to infringe on the suspect’s right to be free from governmental interference. . . 302 So.2d at 873.

(Emphasis added).

At the foundation of Saia is the proposition that police officers may not reap the benefits of their unlawful intrusion into a citizen’s freedom of movement. This does not mean, however, that police are left impotent in their investigatory practices — it is only when the citizen is actually stopped without reasonable cause or when that stop is imminent that the right to “be let alone” is violated. State v. Williams, 304 So.2d 311 (La.1974), is illustrative. In that case police officers noticed Clarence Williams walking along a street with a cardboard box under his arm. When Williams noticed the police he became startled, dropped the box to the ground and continued walking. The officers got out of their car and while one stopped the defendant the other looked in the box and found fourteen packages of weiners. While the ultimate issue in the case was the admissibility of a packet of heroin discovered while the police were questioning Williams, for the purposes of the present case it is significant that implicitly this court held that the examination of the box of weiners was permissible because it was abandoned before the defendant’s freedom of movement had been restricted.

Similarly, in the present case, defendant Ryan abandoned the property before the police had intruded upon his freedom of movement. Even accepting Officer Jacob Johnson’s testimony that the package was not dropped until after he had left the car, there was no violation of the defendant’s rights. The officer had the right to move closer for a better view of what he considered suspicious activity: the defendant could not expect to carry contraband and drop it with impunity when he sees an approaching police officer. There is no expectation of privacy when property is abandoned, and no constitutional prohibition against seizure of abandoned property by police.

This assignment is without merit.

Assignment of Error No. 2

Defendant contends that the trial court erred in overruling his objection to the State introducing testimony concerning wholesale and retail distribution of heroin and the identification of and meaning attributed to needle “track marks” before introducing testimony connecting the defendant to the alleged possessioif of heroin.

C.Cr.P. 773, and its Official Revision Comment provide:

“Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.” “The basic purpose of this article is to allow counsel to have a free hand in the conduct of his case. Furthermore, frequently the admissibility of some evidence depends on whether other evidence is admitted. Necessarily, such related evidence cannot be introduced at the same moment and frequently requires the joint testimony of several witnesses. Usually, therefore, the first piece of evidence is admitted subject to being ‘connected up’ or subject to the second related piece of evidence being admitted.”

While it would have been preferable that the State introduce evidence connecting the defendant to heroin traffic before it introduced general testimony concerning drug traffic and track marks, no error is shown where the State did in fact connect the defendant with the seized heroin later in the presentation of its case.

This assignment is without merit.

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


author: SANDERS, Chief Justice. TATE, Justice, DIXON, Justice CALOGERO, Justice,

text:
    STATE of Louisiana v. Harry O. CRAMER.
    No. 61150.
    Supreme Court of Louisiana.
    May 22, 1978.

      Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Harry 0. Cramer, with twenty-six counts of aggravated crime against nature, violations of LSA-R.S. 14:89.1(5). After a bench trial, the court found him guilty, and sentenced him to fifteen years imprisonment on three counts, to run consecutively, and to five years imprisonment on the remaining counts, to run concurrently with each other and with the fifteen year sentences.

The defendant appeals. He relies on five assignments of error for reversal of his convictions and sentences. As he failed to brief or argue five assignments of error, we consider them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

The defendant was an assistant scout master for a New Orleans Boy Scout troop. Over a period of two and one-half years, he had unnatural carnal copulation with seven young boys associated with the troop.

ASSIGNMENTS OF ERROR NOS. 1, 9, AND 10

The defendant’s principal contention is that neither the bill of information nor the bill of particulars supplied him with adequate data concerning the exact times of the offenses to enable him to identify each criminal transaction and defend against them.

Although the bill of information did not give the exact dates of any offenses, it set forth periods of times during which the offenses occurred, e. g., October 19, 1973 through April 5, 1974, December, 1975, April, 1976. The defense filed a motion for bill of particulars requesting the precise dates of the offenses. In response, the State reiterated dates already given in the bill of information and stated that it did not have more definite dates. Thereafter, the defense filed a supplemental motion for bill of particulars asking which offenses grew out of the same transaction. The State answered, grouping those offenses which occurred “on the same day at approximately the same time.” The judge found the State’s answers to both motions “good and sufficient in law.”

Testimony and evidence at trial narrowed some of the periods of time during which the offenses occurred. However, during trial, the State amended the bill of information and the answers to the bills of particulars to reflect the evidence at trial. Thus, count eight, which the State had alleged occurred in April, 1975, was amended to state that it occurred between April and June of 1975.

Louisiana Code of Criminal Procedure Article 468 provides that the “date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.” The State charged the defendant with unnatural carnal copulation when the victim was under the. age of seventeen and the defendant is at least three years older than the victim.

The bill of information contained each victim’s age at the time of the offense and stated that the defendant was three years older than the victims. The State provided the defense with the birth dates of each victim in the answer to the bill of particulars. Therefore, the defense had the essential information as to the ages of the victims. See State v. Hunt, La., 310 So.2d 563 (1975).

The victims in the instant case were unable to recall the dates. The State did not withhold them and introduce them at trial to the defendant’s surprise. Rather, the State supplied the defense with all the available information concerning the dates.

We conclude that the defendant possessed enough data to identify each criminal offense and defend against it.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

The defense complains of the denial of his motion to quash. His main allegation is that the bill of information is multiplicious and thus, subjects him to double jeopardy. He avers that the State should have charged him with one sexual encounter with the same victim at approximately the same time, rather than with one sexual act.

Double jeopardy prohibits subjecting a defendant to multiple punishments for one offense. State v. Cox, La., 352 So.2d 638 (1977); State v. Cotton, La., 341 So.2d 362 (1976).

Thus, the issue presented is whether charging the defendant with aggravated crime against nature for each sexual act subjects him to punishment more than once for the same offense. To resolve this issue we must determine if the Legislature intended each sexual act or each sexual encounter to constitute an offense under LSA-R.S. 14:89.1. State v. Allied Supermarkets, Inc., La., 353 So.2d 999 (1977); State v. McCarroll, La., 337 So.2d 475 (1976).

LSA-R.S. 14:89.1(5), the statute under which the State charged the defendant, provides:

“Aggravated crime against nature is crime against nature committed under any one or more of the following circumstances:
“(5) Where the victim is under the age of seventeen years and the offender is at least three years older than the victim.”

As crimes occurred both before and after the amendment to the statute defining crime against nature, LSA-R.S. 14:89, the former and present articles are relevant. The former article provided, in pertinent part:

“Crime against nature is the unnatural carnal copulation by a human being with another of the same or opposite sex or with an animal. Emission is not necessary, and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.”

The present LSA-R.S. 14:89 is identical to the former, but for an exception embodied in the amendment, which exception is immaterial to the present case.

Initially, we note that the court sentenced the defendant to concurrent sentences on twenty-three of the twenty-six counts.

The intent of the Legislature is clearly expressed in the statutory language. The use of the singular tense indicates that each “unnatural carnal copulation” or “use of the genital organ” is a crime against nature. See State v. Allied Supermarkets, Inc., supra. We reject the defense’s theory that the Legislature intended to punish a defendant only once for a series of unnatural carnal copulations.

LSA-R.S. 14:8(1) supports our conclusion. That statute provides that criminal conduct consists of “an act or failure to act that produces criminal consequences, and which is combined with criminal intent.” [Emphasis supplied.] In describing the theory of “criminal act” the Reporter’s Comment states: ■

“As used in [LSA-R.S. 14:8], ‘act’ refers to an external manifestation of will which produces consequences. * * *
“All positive conduct includes at some point a voluntary muscular movement (external manifestations of will) which we call an act. See Restatement of the Law of Torts (1934) § 2.”

We conclude that the defendant was not subject to multiple punishments for one offense. Each sexual act is a separate offense under LSA-R.S. 14:89.1. The trial judge, therefore, properly denied the motion to quash.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

The defense filed a motion for severance in which he prayed that only those counts relating to the same victim and the same date be tried together. This procedure would have necessitated thirteen trials. The court denied the motion and the defendant now challenges the ruling.

When the defense moves for a severance prior to trial, the court shall grant his motion if “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense . . .” LSA-C.Cr.P. Art. 495.1(a).

The substantial issue presented is whether the trial on the twenty-six counts prevented a fair determination of his guilt on each count. Under the circumstances before us, we find that it did not.

The present case was tried before a judge without a jury. This circumstance is of considerable import. Because of his legal education and judicial experience, a judge has superior skill in evaluating the evidence as to the multiple offenses charged.

The State charged the defendant with committing unnatural carnal copulation, per anus and per os, with seven young boys. The evidence consisted primarily of the boys’ testimony. The State presented the evidence in a logical and organized fashion. The victims described the crimes in a simple, clear, and largely identical manner. There were several photographs depicting the defendant and a victim during the sexual acts. Often the prosecutor announced to the judge the counts to be proven prior to the introduction of evidence on those counts. The trial judge stated that he was following the evidence presented with the counts contained in the bill of information.

The offense charged is a fairly simple one with few elements. LSA-R.S. 14:89.1. See State v. Frentz, La., 354 So.2d 1007 (1978). The identical law applied to all counts.

The non-complex nature of the evidence rendered the case appropriate for joint trial. The judge could readily compartmentalize the evidence and apply the law to each offense. See State v. Mitchell, La., 356 So.2d 974 (1978); State v. Holstead, La., 354 So.2d 493 (1977). Thus, the trial judge properly denied the motion for a severance.

This assignment of error is without merit.

For the reasons assigned, the convictions and sentences are affirmed.

TATE, J., concurs and assigns reasons.

DENNIS, J., concurs in the decree.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

TATE, Justice,

concurring.

I concur, with serious reservations.

Assignment 4 (the motion to quash) raises the substantial issue whether each homosexual act during a single incident with a victim constitutes a separate crime, each punishable by fifteen years at hard labor. La.R.S. 14:89.1 (1962). If the present trial court had not in each such instance made all sentences concurrent, I would be inclined to find that this assignment presents reversible error.

Each separate homosexual act (by way of overture or otherwise) may have technically fit the statutory definition of the crime. Nevertheless, I simply do not believe that the legislature intended to subject the offender to multiple sentences for what in practical effect is a single homosexual crime, involving only one victim and what is in effect a single incident involving contemporaneous sexual misconduct. See State v. Blauin, 315 So.2d 749 (1975).

Nevertheless, I do not dissent on this ground. Arguably the conviction on the principal count would be affirmed, even though we sustained the motion to quash on the subsidiary counts of each incident (which involve contemporaneous acts admissible in evidence as res gestae), St0ate v. Donahue, 355 So.2d 247 (La.1978). By reason of the concurrent sentences, the accused is not subjected to greater punishment than he would be if the motions to quash were sustained as to the subsidiary charges.

Assignment 5 (the motion to sever) likewise raises the troublesome issue of undue prejudice sustained by the accused through the joinder of 26 counts involving seven distinct victims.

If this were a jury trial, the defendant certainly was entitled to severance to avoid the prejudice sustained by joining in a single prosecution seven different offenses against victims in non-related incidents. State v. Carter, 352 So.2d 607 (La.1977). I am not certain that a massive joinder of this nature does not subject the trier of fact to similar prejudicial facts when such trier is the judge alone (as in this case); however, especially since this case was tried before Carter’s clarification of the severance issue, I am inclined for the reasons stated by the majority to find no reversible prejudice here occurred, taking into consideration also that only concurrent sentences were for the most part imposed by the trial court.

DIXON, Justice

(dissenting).

I respectfully dissent.

The motion to sever should have been granted, at least to cumulate the offenses against each victim, resulting in seven bills.

CALOGERO, Justice,

dissenting.

I respectfully dissent.

In assignment of error number four, the majority holds that each individual sexual act committed by defendant was a separate crime, even though committed at the same time as other charged acts upon the same victim. I believe that in this conclusion the majority errs.

Had the defendant committed only one act against one child, certainly he would have committed a criminal act, punishable by fifteen years imprisonment. But when a defendant commits two sexual acts in the same sexual encounter with the same victim, he has committed one crime, not two. State v. Bluain, 315 So.2d 749 (La.1975). I find the situation analogous to the crime of battery. When a person hits another once, his act is punishable as one battery. If the hitter strikes twice or three times in the encounter, the crime is nevertheless a single battery.

I also believe that the majority errs in its discussion of assignment of error number five in which it holds that there was no error in the trial judge’s refusal of defendant’s motion to sever the twenty-six counts with which he was charged into thirteen trials, each one reflecting a separate sexual encounter. Under State v. Carter, 352 So.2d 607 (La.1977), a severance should be granted upon defendant’s motion when multiple crimes are joined on the basis that they are “the same or similar crimes” but they would not be admissible under Revised Statutes 15:445 and 446. Under that analysis, the crimes at issue here are not mutually admissible, and a fair determination of defendant’s guilt or innocence required that a severance be granted. See State v. Frentz, 354 So.2d 1007 (La.1978).

      . An example best illustrates his argument. Counts one through four charge him with four separate crimes which occurred at approximately the same time with the same victim. The defendant alleges that these four actions constitute a single transaction and one criminal offense. According to this theory, he would then stand trial for thirteen, rather than twenty-six crimes.


text:
    STATE of Louisiana v. Johnny Ray HERMAN.
    No. 61183.
    Supreme Court of Louisiana.
    May 22, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Bd., 24th Judicial Dist., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., J. J. Amato, Abbott J. Reeves, Asst. Dist. Attys., Research and Appeals, for plaintiff-appellee.
   DIXON, Justice.

Johnny Ray Herman was charged by bill of information with the armed robbery of Tamara Alexander, in violation of R.S. 14:64. The jury returned a verdict of guilty of simple robbery. Subsequently, defendant was sentenced to five years at hard labor. Due to our disposition of this case, we need only discuss Assignment of Error No. 1.

Defendant was tried for the armed robbery of Jerry’s Amoco on Jefferson Highway and Williams Boulevard in Kenner, Louisiana which occurred on February 16, 1976. That evening, while Tamara Alexander was on duty at the service station, she was approached by a black man at a time when no other employees or customers were present. Ms. Alexander testified that since the man held one hand underneath his shirt, she thought he was armed. The man ordered Ms. Alexander to be quiet and give him the money; she did, and he left. The next day an investigating officer of the Kenner Police Department visited Ms. Alexander at her home bringing with him a file of photographs of about 50 to 60 black males. She identified defendant’s picture as the perpetrator of the offense without hesitation. Defendant was arrested on March 3.

Approximately two weeks before trial, the State notified defendant of its intention to introduce evidence of two similar robberies of Ms. Alexander by defendant at the same location allegedly committed on December 7 and 18, 1975, purportedly to show system, knowledge and intent as outlined in R.S. 15:445 and 446.

Prior to the commencement of trial, defendant objected to the introduction of evidence of the other crimes. The prosecutor argued that his purpose in introducing evidence of the extraneous offenses was to show that defendant committed the robbery while armed with a dangerous weapon. Defendant’s objection was overruled. Ms. Alexander was not called to the stand for the court to ascertain whether her testimony about the other offenses related to a contested issue.

Before the jury, Ms. Alexander testified of the details of the February 16th offense and of her belief that defendant was armed, although she never saw a weapon. She also stated that on December 7 and 18, 1975 she was robbed while working at Jerry’s Amoco by the same man. On December 7th, she stated, she saw no weapon; no testimony was ever elicited as to whether defendant used a weapon in the December 18th robbery.

In general, evidence of extraneous offenses is inadmissible, due to the inordinate risk of prejudice to the accused. As often stated, defendant may not be convicted for the crime for which he is being tried because he is a “bad man” who has committed similar crimes in the past. See, e. g., State v. Frentz, 354 So.2d 1007 (La.1978); State v. Ledet, 345 So.2d 474 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1976). When, however, the extraneous offense is relevant to prove a material issue before the jury, it should not be excluded merely because it shows the accused committed other offenses. State v. Moore, 278 So.2d 781 (La.1972); State v. Gaines, supra.

As counsel for both parties agreed in argument before the trial judge, the other crimes evidence could not be introduced to prove “intent” or “guilty knowledge.” Proof of the act itself is proof of the requisite intent and knowledge needed to commit a robbery. State v. Ballard, 351 So.2d 484 (La.1977); State v. Gaines, supra, and cases cited therein. The prosecutor’s contention that the extraneous offenses were to be used to show that defendant used a gun in the instant case is not supported by the record.

In State v. Moore, 278 So.2d 781 (La.1973), we outlined the two-step inquiry required to determine if other crimes evidence is admissible: (1) was the evidence relevant to an issue of the case? (2) if relevant, was it too prejudicial?

And, in State v. Prieur, 277 So.2d 126 (La.1973), we set out the procedures the State must follow when it intends to offer evidence of other criminal offenses. Among those procedures, it is required that:

“(3) Prerequisite to the admissibility of the evidence is a showing by the State that it serves the actual purpose for which it is offered.” 277 So.2d at 130 (emphasis added).

In order for the evidence of other crimes to be relevant to prove an element of the State’s case, “the ‘matter in issue’ must be real and genuine.” State v. Moore, supra. Nothing may be given in evidence which does not tend to prove or disprove a matter in issue.

The State’s asserted intention of proving that defendant was armed in the February 16th robbery was not accomplished. Once on the witness stand, Ms. Alexander gave no testimony that would indicate that defendant was armed on either of the occasions. The evidence of defendant’s commission of two prior robberies did not “[serve] the actual purpose for which it [was] offered,” and hence was not relevant to an issue in the case.

If the State had considered it helpful to corroborate the victim’s identification of defendant, it could have done so easily, without disclosing the other crimes committed by defendant. However, the State must have been satisfied that identity was not a real issue.

It would have been relevant to show that the victim had encountered the defendant at the station on two other recent occasions. Even if identity had been a contested issue, the evidence that the other occasions were those where defendant robbed the victim should not have been disclosed to the jury because of its seriously prejudicial nature, which overwhelms the probative value of the “other crimes” evidence.

For the foregoing reasons, the defendant’s conviction and sentence are reversed and the case is remanded for a new trial in accordance with law.

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

      . Had the State been required to show its evidence to the trial judge for a determination of whether the evidence tended to prove what it was offered for, before it was presented to the jury, the need for reversal of the conviction might have been obviated. Indeed, the record shows that at the preliminary hearing, Ms. Alexander testified that at none of the three robberies did she see a weapon.


author: PER CURIAM.

text:
    STATE of Louisiana v. Billy TAYLOR.
    No. 61226.
    Supreme Court of Louisiana.
    May 22, 1978.
    James J. Gleason, III, Director, Office of Indigent Defender, Covington, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow Erwin, Dist. Atty., Julian Rodrigue, Abbott J. Reeves, Asst. Dist. Attys., Research and Appeals, for plaintiff-appellee.
   PER CURIAM.

Billy Taylor was charged by indictment with aggravated homosexual rape. La.R.S. 14:43. Prior to trial, the indictment was amended to charge him with attempted aggravated rape only. After a trial by jury, the defendant was found guilty as charged and sentenced as a multiple offender to imprisonment at hard labor for a term of eighty-one years. On appeal, defendant relies upon eight assignments of error for reversal of his conviction and sentence.

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


text:
    STATE of Louisiana, Appellee, v. Richard HANNA, Appellant.
    No. 61230.
    Supreme Court of Louisiana.
    May 22, 1978.
    Theon A. Wilson and Tilden H. Greenb-aum, III, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.
   PER CURIAM.

The defendant was convicted of attempted first-degree murder and sentenced to imprisonment of fifty years at hard labor. We have reviewed the four assignments of error argued upon his appeal, and we find none of them to possess merit.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. David LEWIS.
    No. 61231.
    Supreme Court of Louisiana.
    May 22, 1978.

      Michael L. Karmazin, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant David Lewis was indicted for two counts of second degree murder, in violation of R.S. 14:30.1. After a two-day jury trial, he was acquitted on the first count and found guilty of manslaughter on the second count. Initially defendant was sentenced to serve 15 years at hard labor; however, he was subsequently adjudicated a quadruple offender, R.S. 15:529.1, and sentenced to 30 years at hard labor.

In Assignment of Error No. 1, defendant contends the trial court erred in denying his motion to quash the indictment for misjoin-der of offenses. C.Cr.P. 532(3). In Assignment of Error No. 2, defendant alleges that the trial judge’s denial of his motion to sever the offenses for separate trials constituted prejudicial error. Finding merit in defendant’s second assignment of error, we reverse.

The evidence disclosed the following circumstances surrounding each offense:

(1) At 445 Josephine Street, New Orleans, on April 8, 1976, 1:30 AM, Gerald Brown, a boyfriend of defendant’s cousin, was shot in the back six times with a .22 caliber pistol. The event, outside of the home of defendaht’s cousin and her common-law husband, was unwitnessed. Before the victim died he purportedly named Edward Dennis (an alias for David Lewis) as the perpetrator.

(2) At the corner of Washington Avenue and South Robertson Street, New Orleans, on April 8,1976, 2:30 PM, Larry Benoit was shot in the throat with a .38 caliber revolver during a street corner shootout. Defendant admitted the shooting but alleged it was in self-defense.

The initial joinder of offenses in the same indictment was proper, and, therefore, there was no error in the trial court’s denial of the motion to quash (Assignment No. 1). As amended by La. Acts 1975, No. 528, § 2, C.Cr.P. 493, regarding joinder of offenses, provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

Under these liberalized joinder rules, offenses which are of the “same or similar character” and are triable by the same mode of trial may be tried together. The two offenses charged in the instant case both were homicides, committed with handguns, which occurred within the same general area on the same day, and were subject to the same mode of trial. Although the crimes were not committed in a similar manner nor under similar circumstances, the general similarities between the type of offense, and time and place were sufficient to allow their joinder under C.Cr.P. 493. See State v. Carter, 352 So.2d 607 (La.1977). See also State v. Nelson, 357 So.2d 1100, decided April 10, 1978; State v. Mitchell, 356 So.2d 974, decided March 6, 1978; State v. Holstead, 354 So.2d 493 (La.1977); State v. Proctor, 354 So.2d 488 (La.1977).

Although joinder is technically permissible under Article 493, C.Cr.P. 495.1 was added by La. Acts 1975, No. 528 § 3 to allow a severance where prejudice resulting from joinder is such that either party’s right to a fair trial is jeopardized. Article 495.1 provides:

The court on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever: (a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply, the law intelligently as to each offense.

The likelihood of jury confusion was not present here; only two offenses were at issue, both violations of the same statute, and the evidence itself was relatively uncomplicated. See State v. Nelson, supra; State v. Mitchell, supra.

However, the question the judge must consider when faced with a motion to sever is: when offenses are joined for trial because they are of the “same or similar character” under C.Cr.P. 493, would evidence of one crime be admissible as “other offenses” under the standards established in State v. Prieur, 277 So.2d 126 (La.1973), and State v. Moore, 278 So.2d 781 (La.1973)? State v. Holstead, supra; State v. Carter, supra.

As we stated in State v. Carter, 352 So.2d 607, 614:

. when crimes, which have been joined simply because they are the same or similar character offenses, are indeed legitimate “other crimes” under Prieur and its progeny (the offenses are sufficiently similar, the evidence is relevant to a real issue in each case, and the prejudicial effect of the evidence does not outweigh its probative value), a decision not to sever the crimes will normally be proper. Conversely, we hold that when offenses, which have been joined solely because they are same or similar character offenses, are not legitimate “other crimes” under Prieur and its progeny, they should normally be severed upon pretrial motion of the accused or the state.

In order to be admissible to prove identity the other crimes must be distinctively similar in system, State v. Jackson, 352 So.2d 195 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976); State v. Waddles, 336 So.2d 810 (La.1976); State v. Hicks, 301 So.2d 357 (La.1974), or “so peculiarly distinctive that one must logically say that [the two crimes] are the work of the same person.” State v. Lee, 340 So.2d 1339, 1345 (La.1976) (concurring opinion).

The two offenses in the instant case are not so peculiarly distinctive that they can be considered “signature crimes:” they would not therefore, have been reciprocally admissible in separate trials. The only common elements between the two crimes were that they took place in the same general area within 13 hours of each other and were both homicides committed with the use of handguns. Otherwise they were dissimilar: Brown was murdered during the early morning hours behind defendant’s cousin’s residence when no witnesses were present; Benoit was killed in the midafter-noon at a public street corner in full view of many witnesses. The weapon used in the Brown incident was a .22 caliber revolver; Benoit was probably killed by a shot fired from a .38 caliber revolver.

The State argues that there was no reversible error committed by the trial judge’s denial of the severance since the jury was apparently able to sift the evidence presented for each offense, as evidence by their verdict of not guilty for the Brown homicide, and guilty of a lesser included offense for the Benoit homicide. Admittedly, the standards set out in State v. Carter, supra, are not absolutes. 352 So.2d at 614. In Carter, we recognized that in certain instances where offenses would not be admissible under Prieur, it may still be proper to deny a severance. For example, we noted an appropriate situation where “the state’s evidence as to several crimes is so overlapping and totally singular that trial should be had on all the joined crimes at one time.” 352 So.2d at 614 n. 13. However, the denial of the severance was not proper in the instant case. The jury might have considered the Brown murder charge in rejecting, for the most part, defendant’s allegations of self-defense to the Benoit murder charge. The State produced only one eyewitness to the street corner shootout who stated that the victim, Benoit, was unarmed. The defense, on the other hand, produced three witnesses all of whom testified that Benoit was armed and shot at the defendant. One of those witnesses, Larry Powell, had been involved in the shootout, was wounded by a shot fired by defendant, and admitted having first shot at defendant. Another defense witness testified that the day before the shootout he saw Benoit and Powell shoot at but miss the defendant and state that they would “get” him. Therefore, the State’s evidence against defendant for the Benoit homicide was relatively weak, especially in light of the evidence offered by the defense. It was likely that the evidence of the other crime contributed to the jury’s verdict of guilty of manslaughter for Benoit’s death. Hence, we cannot say that the joinder was harmless. Defendant may have been deprived of a fair determination of guilt or innocence as to each crime charged. C.Cr.P. 495.1.

Other pertinent questions are: (1) whether the proof of other crimes is relevant to prove a fact of consequence to the accused’s present guilt, or innocence (independent of the inadmissible purpose to infer that the accused was a bad man who committed the crime on trial because he committed the other one), State v. Moore, supra; State v. Jordan, 276 So.2d 277 (1973); State v. Mitchell, supra; State v. Jackson, supra; State v. Frederick, 340 So.2d 1353 (La.1976); and (2) whether the probative value of the evidence of the other crime outweighs its prejudicial effect, State v. Mitchell, supra; State v. Jackson, supra; State v. Ledet, 345 So.2d 474 (La.1977); State v. Moore, 278 So.2d 781 (La.1973).

Neither question can be answered in the affirmative. Neither shooting proved anything about the other, except that the assailant was a bad man. And, as noted above, the prejudicial effect of the evidence of the cumulated shootings could have easily persuaded a doubting juryman that defendant was guilty of something.

Accordingly, we conclude that there was error in denying defendant’s motion for severance. The conviction for manslaughter is reversed, the sentence is set aside, and a new trial is ordered for the killing of Larry Benoit.

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


author: SANDERS, Chief Justice. DIXON, Justice

text:
    Dorothy Smith, wife of/and Harold R. SMITH v. GOVERNMENT EMPLOYEES INSURANCE CO.
    No. 60699.
    Supreme Court of Louisiana.
    May 22, 1978.
    Frank J. D’Amico, New Orleans, for plaintiffs-applicants.
    . Robert E. Leake, Jr., Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendant-respondent.
   SANDERS, Chief Justice.

■ This litigation arose from an automobile accident which occurred on December 14, 1973. The plaintiffs, Mr. and Mrs. Harold R. Smith, were injured and their automobile damaged. The trial court awarded $7,500 general damages to Mrs. Smith and $1,250 to Mr. Smith. The trial court also awarded Mr. Smith $1,100 for his anticipated loss of profit on the sale of the automobile he was driving. Defendant appealed only the general damage award to Mrs. Smith and the loss of profit award to Mr. Smith. The Court of Appeal reduced the general damage award to Mrs. Smith to $2,500; eliminated the “loss of profit” award to Mr. Smith; and affirmed the remainder of the judgment. 349 So.2d 435 (1977). We granted writs to review the judgment of the Court of Appeal. La., 351 So.2d 176 (1977).

After reviewing Mrs. Smith’s injuries and the medical testimony presented, the Court of Appeal stated: “Apparently the trial judge interpreted Dr. Vogel’s report to mean that her headaches were residual symptoms of the concussion, but we do not attach the same significance to the report under all the circumstances.” [Emphasis added.] Without pointing to an abuse of discretion, the Court of Appeal concluded: “An award of $2,500 is adequate to compensate her for the injuries she proved.”

The fact that an appellate court may disagree with the trial judge is not alone a ground for substituting its judgment for that of the trier of fact. Spillers v. Montgomery Ward & Company, Inc., La., 294 So.2d 803 (1974).

In Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1977), we stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., [La., 304 So.2d 351 (1974)]; Bitoun v. Landry, [La., 302 So.2d 278 (1974)]; Fox v. State Farm Mutual Automobile Ins. Co., [La., 288 So.2d 42 (1973)]; Walker v. Champion, [La., 288 So.2d 44 (1973)].”

The Court of Appeal made no express finding that the trial judge abused his discretion. We have reviewed the record and find no basis for such a finding. Hence, the trial judge’s award to Mrs. Smith must be reinstated.

Regarding Mr. Smith’s claim for loss of profit on his automobile, the Court of Appeal stated:

“As to Mr. Smith’s award of $1100 for loss of anticipated profit on his automobile, he testified as follows: He is a new car salesman for a Chevrolet dealer and as a fringe benefit in his employment he is able to make an annual purchase of an automobile from his employer at the dealer’s cost. Under that arrangement he purchased a 1974 Corvette just three months before the accident occurred for $5461.70. The dealers list price for such a car was $6751.50. He would have sold the car the following year, i. e., in December, 1974, when the wholesale .price, according to the NADA book, was $6575.00. The difference between the $6575.00 and the $5461.20 he paid is profit of which he was deprived because of the accident. After the accident his collision insurer paid $2600.00 and the unrepaired car was sold for $2450.00 salvage. The sum of $5050.00 was approximately the balance due on the mortgage of the automobile.
“The trial judge’s award of $1100 was apparently based on the difference between what Smith paid for the car and what he thought the car would have been worth on the market one year after the accident had the accident not occurred. No authority has been cited for such an approach to automobile damages and we have found none.”

The record reflects that the estimated cost of repairing the damaged vehicle was $2,800. The collision insurance policy contained a $200 deductible clause. Hence the collision insurer paid Smith $2,600. Instead of repairing the vehicle, Smith sold it for $2,450.

In Coleman v. Victor, La., 326 So.2d 344 (1976), we stated:

“When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage, it is well settled that the measure of damage is the cost of restoring the property to its former condition. In assessing damage to property, generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired.” [Footnote omitted.]

We agree that the record does not support an award for loss of profit. Plaintiff did not repair the car and hold it for resale but elected to sell the car without repairing it. The asserted loss of profit from a future resale is too speculative to support a damage award.

In this Court, plaintiff also seeks an award for loss of use of the automobile, relying upon Alexander v. Qwik Change Car Center, Inc., La., 352 So.2d 188 (1977).

Plaintiff sought no award for loss of use either in the district court or Court of Appeal. Hence, there is no evidence on this issue. We conclude that the record is insufficient to support such an award.

For the reasons assigned, the district court’s award of $7,500 in favor of Mrs. Dorothy Smith is reinstated and made the judgment of this Court. As thus amended, the judgment of the Court of Appeal is affirmed.

DIXON, J., concurs in part and dissents in part and assigns reasons.

DIXON, Justice

(concurring and dissenting).

I agree that the district court judgment in favor of Mrs. Smith should be reinstated, but respectfully dissent from the failure to reinstate the trial court judgment in favor of Mr. Smith.


author: PONDER, Judge.

text:
    Michael N. SMITH et al. v. DIVISION OF ADMINISTRATION.
    No. 11687.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 23, 1978.
    Rehearing Denied Jan. 30, 1978.
    Maurice J. Wilson, Jr., Baton Rouge, for appellants.
    Phil E. Miley, Baton Rouge, for defendant-appellee. 1
    R. Gray Sexton, Baton Rouge, for inter-venor Civil Service Commission.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

MOTION TO DISMISS

Appellant and appellee filed a motion to dismiss based on the allegation that a compromise had been effected. The court took the motion under advisement. The statute requires the consent of all parties for a voluntary dismissal. Our rules require a joint motion signed by all interested parties.

LSA-R.S. 13:3416 makes the director of personnel of any department of state civil service an indispensable party in any judicial proceeding wherein relief is sought against any decision of the civil service commission with all the rights and remedies of parties in litigation. LSA-R.S. 13:3417 allows the director of personnel not an indispensable party on his own motion to become a party with all the rights afforded to parties in litigation. A motion to intervene filed by the director was approved on August 18, 1977. This certainly made the director a party within the meaning of the statute and rule. The motion to dismiss was not signed by, and was in fact, opposed by the director. The motion to dismiss is denied.

MERITS

Appellant appeals from the dismissal of his appeal by the Civil Service Commission. The issue is the propriety of that dismissal for lack of jurisdiction. We affirm.

In re Division of Administration, 343 So.2d 277 (La.App. 1st Cir., 1977) held that the Division of Administration was a part of the governor’s office within the meaning of the Constitution and the employees of the Division were therefore in the unclassified service. The Supreme Court refused writs, La., 345 So.2d 504 (1977) on the basis of “No error of law . . . ”.

Although two members of the present panel dissented in the In re Division of Administration case, we feel bound to follow that decision, especially since the points made by both appellant and intervenor in the present case were made and rejected in the earlier one.

The dismissal of appellant’s appeal by the Civil Service Commission is therefore affirmed at appellant’s costs.

AFFIRMED.

      . LSA-C.C.P. Art. 2162
      “An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.
      * * * * * * ’>

      . Rule VII — Section 3
      “Any appeal may be summarily dismissed or remanded by order of the court where there has. been a joint motion filed by all interested parties or their attorneys, which shall set forth the reason for such action and which shall be supported by appropriate affidavits that the facts alleged therein are true and correct.
      “In the absence of a timely answer to the appeal or other formal action to amend or modify the judgment appealed, the appellant alone may, by his formal motion to dismiss, on leave of the court, forthwith abandon his appeal and obtain its dismissal.”

      .Art. 10, § 2
      “(B) Unclassified Service. The unclassified service shall include the following officers and employees in the state and city civil service:
      ***** *
      “(10) employees, deputies, and officers of the legislature and of the offices of the governor, lieutenant governor, attorney general, each mayor and city attorney, of police juries, school boards, assessors, and of all officers provided for in Article V of this constitution except the offices of clerk of the municipal and traffic courts in New Orleans;
      * * * * * * ’»


author: GUIDRY, Judge. PER CURIAM.

text:
    Robert J. YOUNG, Jr., Plaintiff-Appellant, v. Dalton A. MORVANT et al., Defendants-Appellees.
    No. 6430.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 24, 1978.

      Broussard, Broussard & Moresi, Paul G. Moresi, Abbeville, for plaintiff-appellant.
    William J. Burris, Lafayette, for defendant-appellee.
    Daniel Regard, New Iberia, for defendant-appellee.
    Ross A. Brupbacher, New Iberia, John Rixie Mouton, Lafayette, for defendant-ap-pellee.
    Rogers and Sellers by Roger C. Sellers, Abbeville, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is a boundary action. Plaintiff seeks to have established the common boundary between a parcel of land owned by him and property located south thereof owned by defendant, Dalton Morvant. In addition, plaintiff seeks to have established the boundary between three other tracts of land located south of the Morvant tract, which tracts together with the Young and Morvant tracts originally comprised a 41 acre tract. The 41 acre tract of land was partitioned in the year 1969 by the five heirs of Ophe and Alzina Hebert into five separate tracts, which tracts were allotted as set forth on the following sketch which was attached to the instrument of partition:

Appendix I to follow.

APPENDIX I

Plaintiff acquired tract 5 from the heirs of Elta Hebert Broussard in August of 1975. Defendant, Dalton Morvant, acquired tract 4 from Esther Hebert in March of 1975. Tract 3 is presently owned in divided parts by Lyman Lee Meaux, Noah P. Harrington, Marietta R. Harrington and Aristile Bau-doin; tract 2 is presently owned by Nolan Trahan; and, tract 1 is presently owned by Jean Auron Cormier. Plaintiff joined as defendants in this proceeding the present owners of tracts 1, 2, 3 and 4 and their respective ancestors in title who were owners at the time of the 1969 partition. Answers in the nature of a general denial were filed by all defendants excepting Roy Hebert, Lyman Lee Meaux, Noah P. Harrington and Marietta Harrington, a preliminary default being entered against the latter three several days prior to trial. Exceptions of no cause and no right of action were filed by the Hebert defendants. Exceptions pleading the prescription of 5 years as provided for by LSA-R.C.C. Article 3542 were filed by the present owners of tracts 1, 2, 3 and 4, excepting Lyman Lee Maux, Noah P. Harrington and Marietta Harrington. An exception of non-joinder of indispensable parties was filed by Baudoin and others seeking joinder of the ancestors in title of plaintiff. By various third party demands the present owners of tracts 1, 2, 3 and 4 called their ancestors in title in warranty seeking indemnification for any loss sustained. Although the record is not entirely clear on this point, presumably the exceptions were referred to the merits, and as a result of three separate judgments dated June 9, 1977, June 13, 1977 and August 3, 1977, plaintiffs suit was dismissed as to all defendants at his cost. The June 9, 1977 and June 13,1977 judgments dismissed plaintiff’s suit as against Roy Hebert, Aris-tile Baudoin, Nolan Trahan and Jean Auron Cormier, on the exceptions of prescription filed by them. The August 3, 1977 judgment dismissed plaintiff’s suit as against all remaining defendants. Plaintiff appealed.

Subsequent to the record being filed with this court, three separate motions to dismiss plaintiff’s appeal, as untimely, were filed by Roy Hebert, Esther Hebert, Jean Auron Cormier, Aristile Baudoin and Nolan Tra-han. Plaintiff in oral argument before this court concedes that his appeal, insofar as Roy Hebert, Jean Auron Cormier, Aristile Baudoin and Nolan Trahan are concerned, was untimely. We agree and will order that plaintiff’s appeal be dismissed as to these defendants.

Plaintiff resists dismissal of his appeal insofar as Esther Hebert is concerned. As to defendant Esther Hebert, plaintiff’s appeal is timely, and we deny her motion to dismiss. The formal judgment in her favor was signed on August 3, 1977. Since the matter was taken under advisement, the delay allowed for appeal did not begin to run until August 5, 1977, the day after the mailing of the notice of judgment. LSA-C. C.P. Articles 1913 and 1974. Thus, plaintiff had until October 14, 1977 to perfect his appeal to Esther Hebert and the remaining defendants. LSA-C.C.P. Article 2087. Plaintiff’s appeal is thus timely as it was perfected as to all remaining defendants, including Esther Hebert, on September 1, 1977.

Plaintiff assigns the following errors:

(1) The trial court’s sustaining of the exceptions of prescription as to all defendants other than Morvant;

(2) The trial court’s conclusion that the common boundary between plaintiff’s and Morvant’s tracts was established and correctly staked as a result of the 1969 partition; and,

(3) The trial court’s dismissal of plaintiff’s suit as against Dalton Morvant.

We first consider correctness of the trial court’s dismissal of the instant suit as to all defendants other than Dalton Morvant.

Although we agree with the result reached in this regard by the trial judge, we believe that he erred in dismissing all defendants, other than Morvant, on the basis of the exceptions of prescription. LSA-R. C.C. Article 3542 provides that an action for rescission of a partition is prescribed in 5 years. Plaintiff in this suit does not seek a rescission of the 1969 partition but rather seeks to have established the boundaries between the several tracts allotted therein. The cited article is clearly inapplicable to the instant suit. Whatever right plaintiff may have to fix boundaries is imprescripti-ble. LSA-R.C.C. Article 825.

We believe however, that plaintiff’s suit as against all defendants, other than Mor-vant, should have been dismissed either on the exceptions of no cause or right of action or on the merits.

It is well established that a suit to have a boundary line fixed is available only for the purpose of separating contiguous or adjacent estates. LSA-R.C.C. Article 823; Moss v. Drost, 130 La. 285, 57 So. 929 (1912). The only exception to the above rule is that set forth in LSA-R.C.C. Article 827 which provides for a fixing of boundaries between several coproprietors, when a partition of the property held in common takes place. Plaintiff does not allege nor contend that his property (tract 5) is adjacent or contiguous to any of the properties of the defendants other than Dalton Morvant. Therefore the action of boundary is not available to plaintiff insofar as the owners of tracts 3, 2 and 1 are concerned unless the exception in Article 827 applies. We conclude that the latter article is inapplicable because the instant action is not one between several co-owners incident to a partition of property held in common. For the above reasons we conclude that the result reached by the trial court, i. e., dismissal of the instant suit as to all defendants, other than Dalton Morvant, is correct.

Appellant’s next assignment of error questions correctness of the trial judge’s conclusion that the boundary between the Young and Morvant tracts (tracts 5 and 4) was established by the 1969 partition agreement. Appellant additionally questions correctness of the trial court’s conclusion that the division line between parcels 5 and 4 was correctly established and staked on the ground pursuant to the partition agreement and the sketch attached thereto. We conclude that the boundary between the Young and Morvant tracts was established by the 1969 partition agreement.

Prior to execution of the partition 'agreement Chester Hebert, one of the heirs of Ophe and Alzina Hebert, measured the forty-one acre tract held in common and subdivided same into five parcels. He then proceeded to stake each parcel at its southeast and southwest corners and tract 5 on its northeast and northwest corners, as well. He then prepared a sketch showing the division, which sketch is annexed to the instrument of partition. This map or sketch has been previously shown herein. Prior to execution of the partition agreement all parties, or their authorized representatives, approved the division of the property as staked and drew lots. Thereafter the agreement of partition was executed and recorded. We consider that under these circumstances the partition agreement constituted an extra judicial fixing of the boundaries of the several tracts as between the parties. We recognize that the fixing of the limits of the several tracts was not done by a sworn surveyor however, this is no longer required in instances where boundaries are established extra judicially by agreement of all parties. LSA-R.C.C. Article 833 as amended by Act 156 of 1968.

Appellant next contends that the boundaries between the several tracts were incorrectly established and staked, do not conform to the division as set forth in the partition and should be rectified. LSA-R. C.C. Article 853. The trial court did not address this issue directly but simply held as follows:

“The court is satisfied from the testimony that when the original partition was made the boundaries were fixed and marked by stakes and all of the heirs were satisfied. A dispute arose only after the plaintiff purchased his tract of land.”
“The court accordingly holds that the boundaries were established as staked and as shown on the plat attached to the original partition.”

We ultimately agree with the trial court that the boundary between the properties of Young and Morvant (tracts 5 and 4) is as staked and as shown on the plat attached to the partition, however, we prefer to do so based upon a finding that there are no errors or omissions to be rectified.

The partition agreement provides that the 41 acre tract owned in common is to be divided so as to allot to each co-owner the “approximate one-fifth” of the property, reserving to all parties in indivisión a strip north of tract 5 “occupied by a private road and a drainage right-of-way”. We quote from the partition agreement the exact language employed in the latter reservation:

“Appearers declare and acknowledge that the northerlymost 35 feet of the tract of 41.20 acres, which said 35 foot strip is occupied by a private road and a drainage right-of-way, is not partitioned and ap-pearers shall continue to hold said strip of land measuring 35 feet, more or less, in width by a length of 848 feet, more or less, in indivisión.” (Emphasis ours)

The record indicates that the strip, “occupied by a private road and a drainage right-of-way”, lying north of tract 5, although measuring 35' (actually 34.86') at its eastern terminus actually measured only 29.84' at its western terminus. This circumstance caused the court appointed surveyor to conclude that the sketch attached to the instrument of partition and the location of the several tracts on the ground was erroneous as is more fully explained hereafter.

The testimony of Chester Hebert, the co-partitioner who measured, divided and staked the several tracts was to the effect that he proceeded as follows. He measured the exact width of the “existing” right-of-way at its eastern terminus and found it to he 35 feet. He did not measure the width of the road and ditch at its western terminus but assumed that it was the same as the east. He considered the exact measurement unimportant as the entirety of the “existing” right-of-way was to be reserved from partition. He then measured the east line of the whole property which fronts the public road, commencing at the southeast corner of the “existing” right-of-way and found this line to be 2300' in length. He then measured the west line of the whole property commencing at the southwest corner of the “existing” right-of-way and found such line to be 2220 feet in length. He then proceeded to divide the tract into 5 lots as shown on the sketch attached to the partition. The sketch was then prepared and the southeast and southwest corners of each lot were plainly marked on the ground at the distances as shown on the sketch.

The court appointed expert, Eugene Sellers, in his survey of the property and the boundary lines of the several lots proceeded in the following manner. He first surveyed the outer limits of the entire tract. Thereafter, ignoring the actual width of the “existing” road and ditch right-of-way, he allowed a reserved right-of-way of 35' between parallel lines, his width of the right-of-way being 37.82' on the east and 37.60' on the west. He thereafter proceeded to divide the remainder into lots of near exact equal area. Proceeding in this manner he determined that the west and east lines of each tract are shorter in length from those shown on the partition sketch and the south line of each tract, excepting tract 1, is moved further south and fails to coincide with the markers placed at the southwest and southeast corners of each lot by Chester Hebert.

In summary, discrepancy occurs between the boundaries as fixed by Chester Hebert and that fixed by the court appointed expert because in dividing the property the former reserved to the copartitioners in in-división only the “existing” right-of-way and the latter reserved from the partition a right-of-way exactly 35' wide between parallel lines.

We conclude that the procedure followed by the court appointed expert in fixing the boundaries between the several tracts was in error in that the results reached do not conform to the recitals of the partition, the sketch attached thereto or the intention of the parties, the latter as reflected by the testimony of several of the original coparti-tioners.

No where in the instrument of partition is there reserved from the partition a road and ditch right-of-way of exactly 35' between parallel lines. To the contrary the parties reserved from the partition the “strip, .occupied by a private road and a drainage right-of-way ”, which strip was estimated to measure “35 feet, more or less, in width by a length of 848 feet, more or less . . ”. Additionally, the partition instrument does not indicate that the several tracts allotted were to be exactly equal in area, rather the partition states that the property, less that reserved, is to be divided in such manner that “approximately one-fifth (Vs) of said property should be vested in each of them”.

Considering the evidence in the record, particularly the language of the partition instrument, supra, it is more reasonable to conclude that the parties to the partition agreement intended to reserve only the actual area occupied as a road and ditch right-of-way at the time of partition.

All of the experts who testified, including Mr. Sellers, agree that if the tracts allotted in partition are measured from the southeast and southwest corners of the “existing” right-of-way regardless of the width of the road and ditch at such points, that the several tracts allotted in partition, as measured and staked on the ground very nearly coincide with the location and measurements of the several lots as set forth on the sketch attached to the partition. This is shown by exhibit Chester Hebert I, prepared by Sellers, Dubroc & Associates Inc. The exhibit referred to, which we reproduce herein, shows the extent of the “existing” road and ditch right-of-way and the measurements of tract V.

Appendix II to follow.

APPENDIX II

For these reasons, we conclude that there are no errors or omissions in the original measurements or sketch and that the common boundary between the property of plaintiff and defendant Dalton Morvant is as staked on the ground and as shown by the sketch attached to the 1969 partition.

Plaintiff finally contends that the trial court erred in dismissing his suit. We agree, noting that the court appointed surveyor did not locate the common boundary line between the two properties as staked and sketched by Chester Hebert, which boundary line we have concluded to be correct. Plaintiff is entitled to have this common boundary line, as determined by judgment of the trial court which we affirm, located and judicially fixed by means of a survey conducted and prepared by a court appointed surveyor. In William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977), our Supreme Court sustained defendant’s peremptory exception of prescription, finding possession in excess of thirty years by successive owners to a visible boundary (fence) between adjacent properties. The Court then stated:

“Although the judgment rendered by the trial court attempted to describe with particularity the location of the disputed boundary, there is no reliable evidence in the record on which an accurate description can be based because no surveyor has been appointed and no survey or proces verbal thereof has been made. This Court, therefore, can only affirm the factual findings of the trial judge. Thus the boundary has not been judicially ‘fixed’ as the action in boundary requires under the circumstances. In the absence of agreement between the parties, that must be done by a sworn surveyor of this State, who shall be bound to make a proces verbal of his work in the presence of two witnesses. La.Civil Code arts. 833-39.”

Accordingly, we will remand this ease to the trial court for the purpose of having a court appointed surveyor go upon the property owned by plaintiff and defendant Mor-vant and in accordance with recognized and proper surveying techniques, ascertain and locate the common boundary between these respective properties as said boundary is reflected by the partition agreement of 1969 and the judgment of this court.

For the above and foregoing reasons, it is ordered that plaintiff’s appeal be dismissed as to defendants Jean Auron Cormier, Air-stile Baudoin, Nolan Trahan and Roy Hebert. Further, for the reasons assigned, we reverse that portion of the trial court judgment which dismissed plaintiff’s suit as against Dalton Morvant and this matter is remanded to the district court for the sole purpose of the appointment of a surveyor to locate the common boundary between the properties owned by plaintiff and defendant Morvant according to law and consistent with the views expressed herein. In all other respects, the judgment appealed from is affirmed. Costs in the appellate court are assessed one-half to appellant and one-half to appellee. Final assessment of additional costs incurred at the trial level are to be determined on remand.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff-appellant seeks a rehearing from only that part of this court’s judgment which affirmed the trial court’s assessment of all court costs originally incurred in the trial court, including the cost of the court-appointed surveyor, to plaintiff-appellant. In support of his application appellant urges that under R.C.C. Article 663, and the numerous cases which have interpreted its provisions, the cost of the court-appointed surveyor is to be divided equally between the parties litigant.

We agree that generally cost of a survey in a boundary dispute is to be divided equally between the owners of the estates involved. Harvey v. Havard, 274 So.2d 917 (La.App. 1st Cir. 1973) affirmed, 287 So.2d 780 (La.1973). This general rule is not however, without exception, the provisions of the cited article being inapplicable under certain circumstances. Lirette v. Duplantis, 65 So.2d 639 (La.App. 1st Cir. 1953); Arnaud v. Barber, 225 So.2d 656 (La.App. 3rd Cir. 1969, writ refused, 254 La. 854, 227 So.2d 594; William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977).

In the instant case we concluded that the totality of the circumstances present warranted the trial court’s assessment of all court costs originally incurred in the trial court, including the cost of the court appointed surveyor, to plaintiff-appellant. We remain firm in this conclusion. Accordingly, appellants application for a rehearing is denied.

      . We note that Title 5 of Book 2 of the Louisiana Civil Code was repealed by Act 170 of 1977, effective January 1, 1978, and the substance of the law of boundaries is now contained in Title 6 of Book 2, containing articles 784-796, by virtue of Act 169 of 1977, also made effective January 1, 1978. This suit, having been filed prior to the effective date of these acts, is governed by the law existing prior to January 1, 1978.

      . The increase in the width of the right-of-way at each terminus when a measurement of exactly 35' between parallel lines is allotted occurs as a result of the fact that the existing right-of-way is not situated at right angles to the property.