author: SANDERS, Chief Justice. SUMMERS, Justice

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 57847.
    Supreme Court of Louisiana.
    June 21, 1976.

      Marshall B. Brinkley, Gen. Counsel, Baton Rouge, for defendant-applicant.
    Norman C. Frost, J. Robert Fitzgerald, Birmingham, Ala., M. Robert Sutherland, Slidell, Victor A. Sachse, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-respondent.
   SANDERS, Chief Justice.

The Louisiana Public Service Commission applied to this Court for review of the district court’s issuance of a writ of mandamus ordering it to render its decision on South Central Bell’s application for a rate increase no later than April 18, 1976, and, in default thereof, ordering it to permit South Central Bell to put into effect the proposed rate increase, conditioned upon South Central Bell furnishing bond or security to insure full refund, with legal interest to telephone subscribers should the increase ultimately be determined excessive. This Court granted writs with a stay order in order to review the district court’s judgment. La., 329 So.2d 683 (1976).

South Central Bell filed an application for a rate increase on April 18, 1975, which has not been acted upon by the Commission. On April 8, 1976, the district court issued a mandamus ordering the Commission to render its decision no later than April 18, 1976. In default of a timely decision, the Commission was ordered to put the proposed rate increase, subject to a bond to assure refunds.

The questions presented for our review are two: (1) is mandamus relief proper, and (2) may the courts order the increased rates into effect under bond' in the present case until such time as there is a ruling upon the rate increase application by the Commission ?

Article 4, Section 21 (D) (2) and (3) of the Louisiana Constitution of 1974 provide:

“(2) Within twelve months after the effective filing date, the commission shall render a full decision on each application, petition, and proposed rate schedule.
“(3) After the effective filing date of any proposed schedule by a public utility which would result in a rate increase, the commission may permit the proposed schedule to be put into effect, in whole or in part, pending its decision on the application for rate increase and subject to protective bond or security approved by the commission. If no decision is rendered on the application within twelve months after such filing date, the proposed increase may be put into effect, but only if and as provided by law and subject to protective bond or security requirements, until final action by a court of last resort.”

We find mandamus a proper remedy. The Commission is constitutionally required to render a decision within twelve months from the filing of an application. LSA-Const. Art. 4 § 21(D)(2) (1974). While mandamus does not lie to require a particular decision, it does lie to require public officials and agencies to render a decision required by law. Bussie v. Long, 257 La. 623, 243 So.2d 776 (1971); Delord v. Lozes et al., 142 La. 328, 76 So. 759 (1917); Karno v. Louisiana Tax Commission, 233 So.2d 592 (La.App. 4th Cir. 1970), writ refused 256 La. 251, 236 So.2d 30 (1970).

The contingent rate increase ordered by the trial judge presents a more difficult question. Article 4 § 21(D)(3) of the 1974 Constitution provides:

“If no decision is rendered . . . the proposed increase may be put into effect, but only if and as provided by law and subject to protective bond or security requirements, until final action by a court of last resort.” (Italics ours.)

The legislature has enacted no law implementing the protective bond procedure, and the Commission is under no duty to establish its own. Further, the Constitutional Convention Debate 117th Day’s Proceedings, pp. 76-77 makes it clear that no increase may go into effect, absent a ruling by the Commission, until the State Legislature adopts enabling legislation. For the Court to order the provisional rate increase in effect, absent enabling legislation, would be contrary to the constitutional provision.

South Central Bell contends, however, that the district court had the authority under its equity powers to order the rate increase in default of a prompt decision. The Constitution, however, has dealt with the subject of rate increases based on delayed decisions and relegated the matter to legislative action. Hence, the area is not one where there is no express law. LSA-C.C. Art. 21. We conclude, therefore, that the order was improvidently issued.

Admittedly, in 1975, South Central Bell earned a rate of return on equity of 8.6 percent. Under our prior holdings, this rate does not justify judicial intervention at this stage in the rate-making process. See South Central Bell Tel. Co. v. L.P.S.C., 272 So.2d 667 (La.1973); South Central Bell Tel. Co. v. L.P.S.C., 256 La. 497, 236 So.2d 813 (1970).

The year within which South Central Bell was entitled to a decision has now expired. The Commission assigns as the reason for delay the reorganization of the Commission under the 1974 Constitution. In the posture of the case, it is imperative that the case be brought to a speedy conclusion. Hence, we conclude that a mandamus should issue, ordering the Commission to render its decision without undue delay.

For the reasons assigned, the judgment of the district court is reversed and set aside. It is ordered, adjudged, and decreed that a writ of mandamus issue herein to the Louisiana Public Service Commission and to its members, directing the Commission to render its decision on South Central Bell Telephone Company’s application for a rate increase (Commission Docket Number U-12785) no later than thirty days from the finality of this judgment.

SUMMERS, J., dissents and assigns reasons.

DIXON, J., concurs.

SUMMERS, Justice

(dissenting).

I agree with the Court’s resolution of South Central Bell’s contention that mandamus was proper relief in this case. The Constitution leaves no doubt on this question when it declares that “the commission shall render a full decision on each application, petition, and proposed rate schedule” within twelve months after the effective filing date. La.Const. art. IV, § 21(D)(2). Since the Commission indicated it would not obey this constitutional mandate, it was proper for the trial court to order timely compliance. But the applicant was entitled to more.

I cannot agree that the Commission was under no duty to permit South Central Bell to put into effect the proposed rate increase, conditioned upon South Central Bell furnishing bond or security to insure full refund with legal interest to telephone subscribers should the increase ultimately be determined to be excessive.

In my view the Constitution invested the Commission with authority to permit the proposed rate schedule “to be put into effect, in whole or in part, pending its decision on the application for rate increase and subject to protective bond or security approved by the commission.” La. Const, art. IV, § 21(D)(3). Failure of the Commission to exercise this authority was an abuse of its power and discretion under the circumstances of this case. This Court should, therefore, grant the relief authorized and contemplated by the Constitution, or order the Commission to 'grant the rate increase it failed to grant “pending its decision” on the application.

The majority improperly relies upon the provision of the Constitution which stipulates that the proposed rate increase may be put into effect “[i]f no decision is rendered on the application within twelve months.” This latter provision authorizes the applicant to “put into effect” the proposed increase in accordance with law. Placing the rates into effect after twelve months requires no Commission authorization. Failure of the Commission to act within twelve months is the basis for putting the proposed rates into effect. Admittedly laws designed to implement this situation have not been enacted. There is, therefore, no procedure prescribed for effectuating this constitutional authorization permitting the applicant to put the rates into effect after the twelve months, following filing of the application.

But the Court does not meet the issue by deciding that the rates could not be put into effect because there is no law implementing this latter constitutional alternative. There is another basis upon which the case can be, and should be, decided; that basis is found in the constitutional language first quoted. Full authority exists there for the Commission to put the rates into effect “subject to protective bond or security approved by the commission,” “pending its decision.” No “laws” implementing this authority is required. This constitutional authorization- is self-opera-tivé. The sole question is whether the inaction of the Commission was arbitrary. And, to restate my position, the Commission inaction was an unreasonable and arbitrary refusal to permit the rate increase “pending its decision.”

A negative position can result in an abuse of the Commission’s authority as well as affirmative action on its part. Either is subject to appeal for redress by any aggrieved party. La.Const. art. IV, § 21(E).

Since rates can have no retroactive effect, the Commission was aware of the consequence of its inordinate delays. One result was that the losses alleged by South Central Bell due to inadequate rates were irreparable, for it could not thereafter recoup those losses by retroactive rate increases.

While orders of the Commission, or its refusal to grant relief, such as the inaction in this case, are entitled to great weight, the Commission’s action or inaction will be overturned by the courts when it is shown to be arbitrary or abusive of the Commission’s authority.

In my view the arbitrary position of the Commission is demonstrated by its refusal to act on the proposed rate application within the time limit fixed in the Constitution. This arbitrary attitude is further evidenced by the Commission’s failure to permit the proposed rate schedule to be put into effect pending its action on the application. This was the only fair thing to do in view of the strong allegations of substantial daily loss on the part of the applicant, and because this loss could not recouped. If this had been done, no one would have suffered. Any adjustments to the consuming public rendered necessary by the ultimate rate determination could be accomplished by refund with interest. The Constitution granted this power to the Commission to enable it to avoid injustice to the applicant. Its refusal to exercise this power was arbitrary.

I respectfully dissent.

      . After this opinion was prepared, the Clerk of this Court received a communication from the legal counsel of the Louisiana Public Service Commission, advising that the Commission had ruled upon the petition of South Central Bell Telephone Company. This ruling, though handed down on June 18, 1976, does not become effective until a written opinion is released. Hence, at this time, we do not regard the case as moot.


source: Caselaw Access Project

author: MARCUS, Justice. SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Patricia A. SHORES.
    No. 57447.
    Supreme Court of Louisiana.
    June 21, 1976.
    Dee D. Drell, Alexandria, for defendant-applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., L. Paul Gianfala, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Patricia A. Shores was charged by bill of information with theft of flowers valued at $41.20, in violation of La.R.S. 14:67. After trial by a judge, she was found guilty as charged and was thereafter sentenced to pay a fine of $250.00 and costs and to four months’ imprisonment, and in default of payment of the fine to serve an additional sixty days in parish prison. The sentence of four months’ imprisonment was suspended, and the defendant was placed on active probation for one year. Upon defendant’s application, we granted a writ of review under our supervisory jurisdiction. La. Const, art. 5, § 5(A) (1974); La.Code Crim. P. art. 912.1.

Defendant presents three assignments of error for our consideration. Finding merit in her third assignment of error, we consider it unnecessary to discuss the other two.

Defendant’s third assignment of error complains of the trial judge’s denial of her motion for acquittal grounded on the state’s failure to produce any evidence that defendant committed each essential element of the crime charged. In a trial by a judge alone, a motion for acquittal shall be granted where there is no evidence that defendant committed the crime charged or an essential element thereof. La.Code Crim. P. art. 778, as amended, La.Acts 1975, No. 527, § 1; State v. Daniels, 326 So.2d 340 (La.1976); State v. Douglas, 278 So.2d 485 (La.1973).

The defendant is a woman who was convalescing from surgery at the time the crime is alleged to have occurred. At trial, Jenny L. Hill and Rose Mary Adams, co-proprietors of Gail’s Flower Shop, were called as witnesses by the state. Jenny Hill related that she took a telephone call from a woman for an artificial flower arrangement on March 20, 1975. The caller identified herself only as a temporary secretary from the office of Ray Gates, a local businessman, and said that she was replacing Mrs. Patricia Shores, the defendant, at her job while she was absent because of illness. According to Mrs. Hill’s testimony, the caller stated that Mr. Gates, having discovered that defendant had undergone surgery, wanted to send a floral arrangement to her home as a gift. Mrs. Hill and the caller agreed that two arrangements, one dried and the other artificial, would be sent to defendant’s home and that she would keep the one she preferred. It was also agreed that a card would be sent with the flowers, and that on the card would be written: "Don’t try to fool this old man anymore. Hurry back, we miss you. Mr. ‘G.’ ” Mrs. Hill asked the caller what the color scheme of defendant’s house was so that the floral arrangement could be coordinated with it, but the caller could supply little information in this regard. Mrs. Hill testified that her conversation with Mr. Gates’ “secretary” lasted about 35 to 40 minutes. On cross-examination, Mrs. Hill admitted that she had never heard of Mrs. Shores until her name was mentioned in the telephone conversation, nor did she know the caller’s identity.

Mrs. Hill’s business partner, Rose Mary Adams, and her husband testified that they personally delivered the two floral arrangements to defendant’s address the same day. After defendant met them at the door, they went inside her house, and, displaying the arrangements, explained that she was to keep one of them as a gift. After examining the two arrangements for a few minutes, defendant chose one, and Mrs. Adams and her husband left.

Ray Gates, the man to whom the flowers were billed, testified that he had never authorized anyone to buy flowers for defendant. He further stated that he had never had anyone named Patricia Shores in his employ, that he did not know defendant, and that he had never seen her until the trial of this case. Mr. Gates informed Mrs. Hill that he did not order the floral arrangement. Mrs. Hill and Mrs. Adams, however, both testified that after learning that the purchases were unauthorized they made no effort to regain possession of the flowers from defendant.

The state also called as witnesses the proprietors of two other florist shops in Alexandria. Lois Smith Burns, owner of the first, testified that she received a call during May, 1975 from a woman identifying herself only as a secretary from Mr. Ray Gates’ office. This caller, like the person who telephoned Gail’s Florist, also ordered an artificial flower arrangement and charged the purchase to Mr. Gates. The caller said that the flowers, a gift from her employer, were to be sent to Mrs. Patricia Shores. A note stating that the floral arrangement was from “Mr. G.” was to accompany the flowers. Mrs. Burns delivered the arrangement personally to defendant who, according to the florist’s testimony, appeared visibly ill at the time. A day or two later, Mrs. Burns received a call from Mr. Gates informing her that he did not order the flowers. Mrs. Burns called defendant’s home, spoke to her maid, and told her what had happened. Mrs. Burns sent her son to pick up the flowers the same day. Her son testified that he did not encounter any opposition when he went to get the flowers. He stated that when he arrived Mrs. Shores’ maid let him in, showed him where the flowers were, and allowed him to take them.

Ted K. Dauzat, another local florist, recounted a similar story at trial. After being informed that Mr. Gates did not authorize the order, he, like Mrs. Burns, returned to defendant’s home, met her maid at the door, and retrieved his floral arrangement (valued at $15.00) without difficulty.

Defendant called one witness, her husband, who testified that his wife had just returned from the hospital when he noted that she had received “three or four” floral arrangements, which he assumed to be gifts from well-wishers. He had no idea who caused the flowers to be sent to his wife, but surmised that she had been “set up” for the crime by an enemy who wished her harm.

La.R.S. 14:67 defines the crime of theft as follows:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Since the “taking” of the flowers was consensual, the state was required to prove that the flowers were taken instead by means of fraudulent conduct, practices, or representations. The only fraudulent misrepresentation shown to have occurred in this case was the placing of the telephone call that conveyed the false information. Clearly, the identity of the person who made that call is an essential element of the crime charged.

The state relies on the fact that the flowers were delivered to defendant’s home as evidence that she was the caller. Under the circumstances of this case, we cannot say that the fact that the caller ordered that the flowers be delivered to defendant’s home supports a reasonable inference that defendant made the calls. Hence, there was no evidence that defendant made the call to Gail’s Florist Shop. Finding no evidence of the identity of the person who placed the telephone order, an essential element of the crime, we conclude that the trial judge erred in denying defendant’s motion for a judgment of acquittal.

DECREE

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded to the trial court for the granting of a judgment of acquittal in accordance with this opinion.

SUMMERS, J., dissents for the reasons assigned.

SUMMERS, Justice

(dissenting).

There was some evidence to permit the trial judge to infer and conclude that defendant was the “caller”. This Court is not the judge of the guilt or innocence of parties accused of crime. La.Const. Art. V, § 5(C) (1974).

      . 326 So.2d 369 (La.1976).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Wilbert Robert STEVENSON.
    No. 57414.
    Supreme Court of Louisiana.
    June 21, 1976.

      Michael S. Ingram, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Wilbert Robert Stevenson was charged by bill of information with knowingly or intentionally possessing heroin with intent to distribute, in violation of La.R.S. 40:966 (A)(1). After trial by jury, he was found guilty as charged and was subsequently sentenced to life imprisonment at hard labor. On appeal, he relies upon two assignments of error for reversal of his conviction and sentence. We find it unnecessary, however, to review the errors assigned on appeal, as we note, ex proprio motu, reversible error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence.

The record reveals that this prosecution was instituted by a bill of information filed on October 3, 1975, charging defendant with the crime of knowingly or intentionally possessing heroin with intent to distribute on October 2, 1975. This criminal proceeding is therefore governed by the Louisiana Constitution of 1974, which became effective on January 1, 1975.

Article 1, section 15 of the Louisiana Constitution of 1974 provides that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. Similarly, article 382 of the Code of Criminal Procedure, as amended, La.Acts, 1974, Ex.Sess. No. 19, § 1, eff. Jan. 1, 1975, provides that a prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury.

The crime of knowingly or intentionally possessing heroin with intent to distribute is punishable by life imprisonment. La.R.S. 40:966(A) (1); La.R.S. 40:964(B) (10); La.R.S. 40-.966(B)(1). Hence, prosecution for the offense with which defendant is charged can be instituted only by indictment by a grand jury.

Institution of the prosecution in this case by bill of information rather than grand jury indictment constitutes error. Moreover, this error is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence, which we should notice ex proprio motu. La. Code Crim.P. art. 920 (2), as amended, La.Acts 1974, No. 207, § 1; State v. Wells, 283 So.2d 245 (La. 1973); State v. Raby, 259 La. 909, 253 So.2d 370 (1971); State v. Butler, 259 La. 560, 250 So.2d 740 (1971). Cf. La. Code Crim.P. art. 859(8), as amended, La. Acts 1974, Ex.Sess. No. 26, § 1, Official Revision Comment (a).

DECREE

For the reasons assigned, the conviction and sentence are reversed and defendant is ordered discharged.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Adelaide BAUDIER.
    No. 57420.
    Supreme Court of Louisiana.
    June 21, 1976.
    Samuel S. Dalton, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Metairie, for plaintiff-respondent.
   DENNIS, Justice.

Relator Adelaide Baudier was adjudged guilty in the First Parish Court of Jefferson Parish of violating a parish zoning ordinance and was sentenced to pay a fine of $100.00 and ordered to remove a sign. Her conviction was affirmed on appeal by the Twenty-Fourth Judicial District Court, but the judgment was reversed in part and the case remanded with instructions that a fine of no more than $25.00 could be imposed for the offense. On relator’s application this Court granted writs.

Proceedings against relator were instituted by bill of information, executed by an assistant district attorney of the First Parish Court, which, in pertinent part, reads:

“ * * * [T]hat one
ADELAIDE BAUDIER
late of the Parish aforesaid, on or about the SEVENTEENTH (17th) day of JULY in the year of Our Lord One Thousand Nine Hundred and SEVENTY-FOUR (1974) with force and arms, in the Parish aforesaid, and within the jurisdiction of the First Parish Court of Louisiana, in and for the Parish aforesaid then and there being did wilfully and unlawfully violate the Jefferson Parish Comprehensive Zoning Ordinance #3813 Section VII sub-section 2, to-wit:
Mrs. Baudier has erected a sign advertising her law practice, located at 3917 Clearview Pkwy., in a R-l Residential Zoning which is in violation of the aforesaid Ordinance, * * *

The two sections of the ordinance involved, insofar as pertinent, read:

“SECTION I
“ * * *
“34. HOME OCCUPATION:
An accessory use customarily conducted within a dwelling by the resident thereof, which is clearly secondary to the use of the dwelling for living purposes and does not change the character thereof or have any exterior evidence of such secondary use other than a small name plate of note [sic] more than 4" x 12"; and provided that in no case shall more than fifteen percent (15%) of the floor area of any dwelling unit exclusive of any accessory building be used for such home occupation. The office of a physician, surgeon, dentist, or other professional person, who offers skilled services to clients and is not p¡.ofessionally engaged in the purchase or sale of economic goods, including individual musical instrument instruction limited to a single pupil at a time, shall be deemed to be Home Occupations; .
* * *
“SECTION VII
«* * *
“2. PERMITTED USES — In R-l Districts only the following uses of property shall be permitted:
“ * * *
“D. Home Occupations.”

On granting writs we limited our consideration to relator’s contention that the action to enforce size restrictions of the sign had prescribed by the time this prosecution was initiated.

Relator’s allegation of prescription is based upon La.R.S. 9:5625 (A) which provides:

“§ 5625. Violation of zoning restriction, building restriction or subdivision regulation
“A. All actions civil or criminal, created by statute, ordinance or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities or their instrumen-talities or by any person, firm or corporation to require enforcement of and compliance with any zoning restriction, building restriction or subdivision regulation, imposed by any parish, municipality or their instrumentalities, and based upon the violation by any. person, firm or corporation of such restriction or regulation, must be brought within two years from the first act constituting the commission of the violation; provided, that where a violation has existed for a period of two years prior to August 1, 1956, except those actions created for the purpose of amortization of non-conforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, the action must be brought within one year from and after August 1, 1956, and provided further that with reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of non-conforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within two years from the date the parish, municipality and their properly authorized instrumentality or agency if such agency has been designated, first had been actually notified in writing of such violation. Except as relates to nonconforming signs and billboards, any prescription heretofore accrued by the passage of two years shall not be interrupted, disturbed or lost by operation of the provisions of this section.”

The statute draws a distinction as to the time prescription begins to run, between violations of use regulations and other restrictions and regulations. Actions to require enforcement of and compliance with the latter must be brought within two years from the first act constituting the commission of the violation, while actions to require enforcement of and compliance with use regulations must be brought within two years from the date the designated governmental authority first had knowledge of the violation. E. g., Parish of Jefferson v. Groetsch, 256 So.2d 722 (La. App. 4th Cir. 1972); Irland v. Barron, 230 So.2d 880 (La.App.2d Cir. 1970). In 1972 the statute was amended to provide that with reference to violations of use regulations such actions must be brought within two years from the date the governing authority first had actually been notified in writing of such violation. Acts 1972, No. 54, § 1.

The material evidence in the case is not in dispute. The relator is an attorney at law and uses part of her home as a law office. On December 30, 1972 she erected a sign on her front 3awn measuring 16 inches by 23 inches which read: “Law Office, Adelaide Baudier, Notary in office.” The sign remained in place and unchanged from this date through the date of the trial. During this time relator also continued to use her house as both her residence and her professional office.

Since the bill of information commencing this criminal action was not filed until January 9, 1975, more than two years after the erection of the sign, the determinative issue is whether its presence constituted a violation of a use regulation. The State contends that because the sign advertising her occupation is larger than allowed by the ordinance that her property does not meet the definition of a “Home Occupation.” Consequently, it is argued, she bears the burden of proving that the governing authority received written notice of her nonconforming use of the property more than two years before the suit was filed.

We do not believe the redactors of either the ordinance or the statute at issue here intended for the character of use of a dwelling to depend upon the size of a sign placed on its lawn. The ordinance expressly states that an “Office of a . . . professional person . . . shall be deemed to be [a] Home Occupation [s] * * *,” which is a permitted use of the property in question. Certainly the parish has an interest in and may regulate the size of signs placed on houses used for such home occupations. However, the placement of an improper sign on otherwise permissibly used property cannot reasonably be construed to change the character of that use. Accordingly, we find that the erection of the oversized sign by the relator was not a use violation but merely a violation of a restriction on signs. Therefore, under La.R.S. 9:5625 the parish had two years from the erection of the sign within which to bring an action for enforcement of the restriction, and it could not reckon the prescriptive period from receipt of written notice of the violation.

The relator’s motion to dismiss based on prescription of this action should have been sustained. Accordingly, the conviction and judgment against her are reversed.

REVERSED.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Larry B. COBB.
    No. 57582.
    Supreme Court of Louisiana.
    June 21, 1976.
    Frank J. Gremillion, Greco, Thompson & Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinque-field, Asst. Dist. Atty., for plaintiff-appel-lee.
   SUMMERS, Justice.

A bill of information filed by the District Attorney of East Baton Rouge Parish charged that John C. Gibbs and Larry B. Cobb knowingly and intentionally distributed marijuana. La.R.S. 40:966 A. Gibbs turned state’s evidence. Cobb was tried, found guilty and sentenced to serve three years imprisonment at hard labor.

At the trial Cobb, a black man, was identified by Gibbs and Carmen Dufrene as the person who sold marijuana to Dufrene, an undercover police woman posing as a student. Although Cobb was not a student, the transaction occurred in the vicinity of Tara High School on a school day just before the beginning of class.

I.

In brief defense counsel sets forth that during the selection of prospective jurors Vicky A. Foelsch was called for voir dire examination. The prospective juror examined immediately before Foelsch indicated that he might not agree that the statute for the offense charged was fair, and he was excused. Foelsch was then examined by the trial judge:

“Q. How about you?
A. (MS. FOELSCH) I think the penalty is a little stiff for this situation.
Q. Now, let me explain to you this, first of all, the function of the jury in a case like this is to determine what the facts are, and their verdict must be based on the testimony and the evidence without regard to what the possible penalties are.
A. (MS. FOELSCH) Uh-huh.
Q. And if the possible maximum penalty is too stiff, then the question arises, notwithstanding the fact that you may feel or disagree with that portion of the law, the penalty, maximum penalty is too stiff, could you apply the law, and if you’re convinced beyond a reasonable doubt that the man has been proved guilty could you return the verdict of guilty? In other words, would your disagreement with the penalty portion of this law affect your judgment on guilt or innocence?
A. (MS. FOELSCH) In other words, keep me from me from saying the man is guilty because—
Q. Right.
A. (MS FOELSCH) Well, really, you know, like I said, I think it is fairly stiff and I don’t know that I could, knowing that in the back of my mind, could actually say guilty.
Q. Well, you understand that the legislature has placed the burden and the duty upon the Court—
A. (MS. FOELSCH) Yes, uh-huh.
Q. —to impose a suitable sentence within the limits of zero to ten years at hard labor, you understand that?
A. (MS. FOELSCH) Yes, I understand that.
Q. You nevertheless still feel that it could affect your judgment in this case?
A. (MS. FOELSCH) Yes, it could.
MR. ¡SINQUEFIELD (Assistant District Attorney): Again, Judge, I’ll challenge for cause.
Q. To put it another way, even though he’s guilty, you don’t want' to expose him to up to ten years at hard labor, is that right? (underling added).
A. (MS. FOELSCH) Yes, Sir.
Q. You’d rather he go free?
A. (MS. FOELSCH) I guess so.
THE COURT: All right, we’ll excuse you, too. You won’t have to come back. Thank you. Take your subpoena down.”

According to the defense the underlined question by the trial judge was an expression in the presence of the jury venire that he felt the defendant was guilty. Conceding that the remark was not intended to have that effect, defense counsel nevertheless argues that the remark “even though he’s guilty” comes within the prohibition that “[t]he judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.” La.Code Crim.Pro. art. 772. Cf. La.Code Crim.Pro. art. 806.

After defense counsel moved to quash the jury because of the question, the judge admonished the jury in this manner:

“THE COURT: All right, I want to remind you ladies and gentlemen right before we recessed we were talking about, the lady who thought that the harshness of the penalty was such that it could influence her judgment as to guilt or innocence, I want you to understand that any remark that I might make, or did make, or any remarks made by the prosecutor, or even by the defense attorney, in propounding such line of questioning, it is not meant to infer that I think or believe this accused is guilty of the charge, or that anyone else thinks he’s guilty of the charge. The questions are propounded to see whether or not you can dispassionately judge the evidence and weigh the evidence and determine whether the State has, in fact, carried its burden of proof to prove the guilt of the accused to the jury’s satisfaction and beyond a reasonable doubt. The accused in this case enjoys the legal presumption of innocence guaranteed by the United States Constitution, and the Louisiana constitution, and you must afford him that legal presumption of innocence and require that the State does carry its burden of proof to establish beyond a reasonable doubt to your satisfaction that he has been proved guilty before you can vote to convict.”

In our opinion the trial judge was saying that in a hypothetical situation, if a defendant were guilty, he understood that the prospective juror, Ms. Foelsch, would not want to .expose him to imprisonment for ten years. We believe, moreover, that the prospective jurors who may have heard the remark and who were chosen did not consider the judge’s question as an expression of opinion by him that defendant was guilty of the charge on which he was to be tried. Its effect upon Ms. Foelsch is immaterial because she was excused for cause.

The phrase “even though he’s guilty” taken in the context of the voir dire examination is a reference to an assumed person, used to- make the question clear. The same is true of a previous question in which the judge used the phrase, “and if you’re convinced beyond a reasonable doubt that the man has been proved guilty.” There the reference to “the man” was not a reference to the defendant, but to an assumed and mythical person used in the interrogation to make clear the judge’s inquiry into the prospective juror’s attitude toward the law.

The judge’s question could have and should have been couched in different words, and any expression of opinion by the judge during a jury trial that a defendant is guilty must be condemned. But a chance, inartfully worded remark, the meaning of which, taken in context, does not amount to an expression of opinion of the trial judge touching upon the defendant’s guilt, will not serve as a basis for upsetting a guilty verdict. State v. Farrier, 114 La. 579, 38 So. 460 (1905); State v. Walker, 50 La.Ann. 420, 23 So. 967 (1898); State v. Alphonse, 34 La.Ann. 9 (1882).

“It is our bounden duty to see that the accused suffers no injury at the hands of the court, but it is also our duty in the administration of justice to see that parties found guilty of crime by the verdict of a jury concurred in by the trial judge should not escape punishment by reason of harmless and unimportant errors committed in the course of the trial.” State v. Farrier, supra, 38 So. at 463.

II.

Carmen Dufrene, the undercover agent, posing as a student at Tara High School, was the State’s principal witness. She testified that she purchased one pack of marijuana from Cobb. On direct examination she was positive in her identification of Cobb, having met him on the occasion when she purchased the marijuana. At that time she conversed with him face to face and had ample opportunity to observe him thoroughly. She had seen him on various other occasions on the school grounds thereafter. Her identification was steadfast.

In his effort to weaken the evidence of identification, defense counsel, in his opening statement and in questioning, adopted the theory that Cobb was not the person present at the marijuana transaction, the offender being another black person. To support this theory he sought to establish by testimony elicited during the cross-examination of agent Dufrene that white persons (here Agent Dufrene) have difficulty distinguishing between blacks. This unfamiliarity with the varying physical characteristics of black people, the theory infers, is due to the condition of a segregated society in which white persons do not generally associate with large numbers of blacks. Defense counsel also questioned Agent Dufrene about her ability to distinguish between blacks and orientals.

On re-direct examination of Agent Du-frene, the following pertinent part of the exchange occurred:

“Q Ms. Dufrene, did you ever have occasion after this day of January 30th to have a conversation with Mr. Larry Cobb?
A Yes, sir.
Q How long after, to the best of your recollection? You don’t have -to give us the exact date.
A About four days after.
Q What was that — tell me, was that face to face conversation?
A Yes, sir.
Q What was that about?
A It was very commonly known that the white, some of the white girls at school were going out with Larry—
MR. SIMMONS: I beg your pardon, I didn’t catch that, Your Honor.
Q Okay, just tell me about the conversation.
A Larry asked me to go out on a date.
Q Okay, did he ask anybody else in your presence?
MR. SIMMONS: I’m going to object to that, Your Honor, I don’t think it’s relevant.
MR. SINQUEFIELD: Judge, after he’s done been all through this with this witness about how she knows him, John Gibbs, he’s going to object to relevancy. It goes to the identity.
THE COURT: All right, objection overruled.
MR. SIMMONS: We’ll assign error.
Q Okay, did he ask anybody else out?
A He asked Sherry Bernard before he asked me.
Q Okay, were you with Sherry Bernard?
A Yes, sir.
Q Okay, how far away from him was you when this conversation took place?
A He was standing right in front of me.
Q Was this the same person that had given John Gibbs the marijuana just several days before?
A Yes, sir.
Q That you bought?
A Yes, sir.
Q Okay, and you recognized him then, is that correct?
A Yes, sir.
Q And you recognize him now?
A Yes, sir.”

Two assignments of error (3 and 6) are based upon the defense contention that the response by the state witness, “It was very commonly known that the white, some of the white girls at school were going out with Larry — ,” was unnecessary, immaterial and highly prejudicial to this black defendant before a jury composed of eleven whites and one black, a prejudice defendant could not overcome.

Article 771 of the Code of Criminal Procedure requires an admonition, on defendant’s request, when a remark or comment is made by a witness which is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the minds of the jury. A mistrial is authorized by this article if the Court is satisfied that an admonition is not sufficient to assure the defendant a fair trial. It is the defense position that the trial judge should have admonished the jury when Agent Dufrene referred to the fact that white girls were going out with Cobb.

There are two reasons why the defense contention cannot be sustained. First, the reference to race was not objected to by the defense and no admonition was requested. And, second, the redirect-examination by the State resulting in the indirect reference to race was non-prejudicial because the subject matter of race had been repeatedly brought out by the defense on the issue of identification.

As a great number of our decisions hold, and as Article 841 of the Code of Criminal Procedure emphatically directs, “An irregularity or error . . . cannot be availed of after verdict unless it was objected to- at the time of its occurrence . . ” See also State v. Marcell, 320 So.2d 195 (La.1975); State v. Forbes, 310 So.2d 569 (La.1975); State v. Craddock, 307 So.2d 342 (La.1975); State v. Rossi, 273 So.2d 265 (La.1973).

A reading of the quoted portion of the redirect-examination by the State discloses that when Agent Dufrene mentioned that it was commonly known that white girls at the school were going out with Cobb, no defense objection was made. The examination continued. When asked about her conversation with Cobb, Agent Dufrene replied that he asked her for a date. Still no objection was made. Then, when Du-frene was asked whether Cobb asked anyone else (for a date) in her presence, defense counsel objected on the ground that this last question was not relevant. This objection was overruled and the interrogation continued without any further reference to race.

As this Court explained in State v. Mar-cell, supra,

“The contemporaneous objection rule, as embodied in Article 841 of the . Code of Criminal Procedure, is necessary in order to promote judicial efficiency and in order to prevent a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors that might easily have been corrected by objection at trial.”

It should be added at this time that the objection cannot be left to speculation, conjecture or implausible inferences. It should be plainly stated and the grounds for the objection should be made known at that time.

In addition to the fact that no contemporaneous defense objection was entered to the remark complained of, there was no request by the defendant that the jury be admonished by the trial judge. Article 771, which imposes upon the party objecting to the witness’ remark the obligation to request an admonition, has not been complied with.

The lack of merit to the defense contentions on these two assignments of error is principally found in the failure of the defense to voice a contemporaneous objection and the failure to request that the trial judge admonish the jury. However, defense counsel made repeated references to race during the trial, and during closing argument to the jury he again referred to Agent Dufrene’s testimony relating to Cobb dating white girls. Such a defense attitude dispels any claim that prejudice occurred attributable to the State as the result of one isolated indirect reference to race by a state witness.

These assignments of error are without merit.

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


author: TATE, J.,

text:
    Robert Bruce GREMILLION v. STATE FARM MUTUAL INSURANCE CO. et al.
    No. 58198.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Robert Bruce Gremillion applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides.

Writ denied. The result is correct.

TATE, J.,

dissents. Although the “result” may be correct (in that the plaintiff child’s own fault may bar recovery). The law announced conflicts with Civil Code Article 2318 and Turner v. Bucher, 308 So.2d 270 (La.1975). Although defendant’s child may himself be free of liability for the reasons stated, the defendant father is strictly liable for acts of his child, whether six years of age or ten, which cause undue risk of injury to others.

DIXON, J., dissents for reasons stated by TATE, J.

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


author: DIXON, Justice.

text:
    STATE of Louisiana v. Frank WALKER.
    No. 57464.
    Supreme Court of Louisiana.
    June 21, 1976.

      Ralph L. Barnett, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Robert Evans, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Metairie, for plaintiff-appellee.
   DIXON, Justice.

Defendant Frank Walker was charged by bill of information with the crime of aggravated battery, a violation of R.S. 14:34. After a jury trial on March 18, 1975 he was found guilty as charged and subsequently sentenced to ten years imprisonment, suspended, and was placed on five years probation. On appeal he relies on thirteen assignments of error. We find merit in assignments Nos. 7, 8 and 9.

The incident for which the defendant was arrested and charged occurred at his place of employment, the Celotex plant in Marrero, Louisiana. The State contended that defendant struck Ike Mosley with a hammer, knocking him to the ground and injuring Mosley’s head. Defendant admitted striking Mosley, but claimed he did so in self-defense.

As part of his case, the defendant attempted to call several of his coemployees at Celotex as character witnesses. One, George Hebert, testified that for the previous eight years he had been the defendant’s supervisor, and had in fact known the defendant from work for over twenty years. However, Hebert did not live in Walker’s neighborhood and testified that he did not know what the people in Walker’s neighborhood thought of Walker. The trial judge refused to allow Hebert to testify about defendant’s good character. Similar character witnesses among his coemployees were not allowed to testify. Such a restriction on character evidence presents reversible error.

La.R.S. 15:479 states:

“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.”

The State contends, and the trial judge agreed, that the statute renders Walker’s coemployees incompetent to testify as character witnesses, because they were not his neighbors, that is, they physically did not live in the same general location as the defendant. We do not believe that the statute intends such a restricted notion of “neighbor.” The more modern view is the appropriate one: “neighborhood” includes any group with whom the accused is sufficiently associated so that a collective opinion of his character might reasonably be expected. Such a group could include his coemployees. See Annotation, 112 A.L.R. 1022.

Wigmore states:

“ . . . There may be distinct circles of persons, each circle having no relation to the other, and yet each having a reputation based on constant and intimate personal observation of the man. “There is every reason why the law should recognize this. Time has produced new conditions for reputations. The traditional requirement about ‘neighborhood’ reputation was appropriate to the conditions of the time; but it should not be taken as imposing arbitrary limitations not appropriate in other times. Alia témpora, alii mores. What the law, then as now, desired was a trustworthy reputation; if that is to be found among a circle of persons other than the circle of dwellers about a sleeping-place, it should be received.” 5 Wigmore, Evidence § 1616 (Chadbourne rev.1974).

McCormick points out:

“It is character at the time of the alleged crime that bears most nearly on the inference of innocence or guilt, and the reputation evidence must be confined to reputation at that time or a reasonable time before. The reputation traditionally was said to be limited to that which obtained in the community where the accused lived, but this should he extended to embrace any considerable group with whom he constantly associated in his business, work, or other continued activi-t.y, and who might reasonably be thought to have a collective opinion about him.” McCormick on Evidence § 191 (2d ed. 1972).

In the instant case, the character witnesses who were not allowed to testify were long-time coemployees with Walker at Celotex. The defendant admitted striking Mosley, but claimed self-defense. His coworkers’ testimony as to his reputation at the plant would have surely been relevant in this case, especially since the incident occurred at the plant. Therefore, it was error to exclude their testimony simply because they did not live in his “neighborhood.” In fact, evidence of his reputation in his neighborhood, where the incident did not take place, and where the defendant might be less well known, might well be less probative in this case than the evidence sought to be presented.

Accordingly, the conviction and sentence are reversed and set aside and the case is remanded for a new trial in accordance with law.

      . Assignments Nos. 1, 2, 3, 5, 6, 10, 11, 12 and 13 were neither briefed nor argued and are therefore deemed abandoned. State v. Carlisle, 315 So.2d 675 (La.1975).


text:
    STATE of Louisiana v. Aaron L. FREETIME.
    No. 57476.
    Supreme Court of Louisiana.
    June 21, 1976.

      R. Lee McDaniel, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Aaron L. Freetime was indicted by the Orleans Parish grand jury on February 22, 1973 for the murder of Helen Green on January 18, 1973 in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty of manslaughter and sentenced to serve twenty-one years at hard labor. On appeal, his conviction and sentence were reversed and the case remanded to the district court for a new trial. State v. Freetime, 303 So.2d 487 (La.1974). Defendant was retried by jury on the same indictment for manslaughter and was found guilty as charged. He was subsequently sentenced to serve twenty-one years at hard labor with credit for time served from February 7, 1973. On this appeal, his relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

(Bills of Exceptions Nos. 3 and 4)

These bills of exceptions were reserved when the trial judge overruled defendant’s objections to the introduction into evidence by the state of two photographs of the deceased victim. One of the photographs (S-l) was taken of the victim at the morgue; the other photograph (S-2) was taken at the point where the victim’s body was discovered. Defendant contends that the state failed to lay a proper foundation for the introduction into evidence of these photographs.

It is a well-settled rule that a photograph need not be identified by the person who took it to be admissible in evidence. State v. Browning, 290 So.2d 322 (La.1974); State v. Mitchell, 278 So.2d 48 (La.1973); State v. Fox, 251 La. 464, 205 So.2d 42 (1967). Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy and when they tend to shed light upon the matter before the court. State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). Sufficiency of identification of a photograph for purpose of admissibility thereof into evidence rests largely within the discretion of the trial judge. State v. Fox, supra.

In the instant case,' Dr. Waldo Bernard, assistant coroner, testified that, according to the Autopsy Protocol (S-6) and the Proces Verbal (S-7), official records of the coroner’s office, Helen Green (victim) was pronounced dead at the scene at 9:27 a. m. on January 19, 1973. Cause of death was listed as a depressed fracture of the skull with laceration of the brain and massive hemorrhage on the side of the head resulting from a blow with a blunt instrument. Dr. Bernard was then shown S-l which he identified as an official photograph from the coroner’s office showing the victim of the instant crime, and on the back of S-l appeared “Helen Green, date 1/19/73 10:00 A.M., photograph number 11816.”

The basis of defendant’s objection is that on cross-examination Dr. Bernard testified that he did not actually examine Helen Green and never saw her; that he had not taken the photograph himself and had no knowledge of it other than the fact that it was part of the coroner’s records.

There is no merit to this contention. In addition to the testimony of Dr. Bernard, Willie Collins, common-law husband of Helen Green for eight years, identified S-l as a photograph of- Helen Green. Also, Officer George Heath, who investigated the death of Helen Green, testified that S-2 was a photograph of Helen Green at the scene where her body was recovered. He further stated that, while he did not take the picture himself, it was taken under his direction and that it accurately depicted the scene where the body of the victim was recovered. Clearly, the testimony of these witnesses identifying the photographs (S-l and S-2) constituted an adequate foundation for receiving them in evidence at trial. The trial judge did not err in his rulings. Accordingly, this assignment of error is without substance.

ASSIGNMENT OF ERROR NO. 2

(Bill of Exceptions No. é)

This bill of exceptions was reserved when the trial judge denied defendant’s motion for a directed verdict of acquittal at the close of the state’s case, based on the ground that the state did not prove intent by the requisite independent evidence over and above the confession of defendant. Defendant does not argue this point on appeal. Rather, in brief, he argues that the state failed to prove by independent corroborating evidence over and above his confession an alleged element of the corpus delicti, i. e., that defendant committed the crime.

First, R.S. 15:445 states that “though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” The circumstances surrounding the killing of Helen Green suggest an intent to kill on the part of defendant. Finding some evidence from which intent can be inferred, this court cannot on appeal pass upon the sufficiency thereof.

Secondly, it is well established that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti. State v. Sellers, 292 So.2d 222 (La.1974); State v. Brown, 236 La. 562, 108 So.2d 233 (1959); State v. Calloway, 196 La. 496, 199 So. 403 (1940); State v. Morgan, 157 La. 962, 103 So. 278 (1925).

In the instant case, Dr. Waldo Bernard testified that Miss Green’s death was caused by a skull fracture with laceration of the brain and massive hemorrhage on the side of the head resulting from a blow with a blunt instrument. John F. Palm, Jr., criminalist, testified that he examined two pieces of brick brought to the crime lab in connection with this case from which human blood and hair samples were removed. The hair had characteristics of the negroid race. Officer George Heath testified that at about 8:50 a. m. on January 19, 1973, the day following the commission of the crime, he was directed to the area where the body of Helen Green was found lying in some brush. The body had been discovered that morning by a truck driver. Officer Heath also identified the two bricks that were removed from the scene and thereafter taken to the crime lab.

It is our opinion that the state proved the corpus delicti of the crime charged to defendant, i. e., that Helen Green was the subject of an unlawful homicide and the unlawfulness of some person’s conduct caused her death. This proof was established by evidence independent of defendant’s confession. Proof that defendant was the person who engaged in this unlawful conduct is of course necessary for a conviction, but it is not an element of the corpus delicti. 1 F. Wharton, Criminal Evidence, § 17, at 27 (13th ed. C. Torcia 1973); 3 id. § 691, at 482.

The trial judge correctly denied defendant’s motion for a directed verdict. Assignment of Error No. 2 is without merit.

DECREE

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


text:
    Jerome BOURQUE, Jr. v. Adrien DUPLECHIN et al.
    No. 58175.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Allstate Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, 331 So.2d 40, Third Circuit, Parish of Lafayette.

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

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


text:
    Mabel Cecelia Michiels BROWN et al. v. SOUTHERN VENTURES CORPORATION et al.
    No. 58219.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Southern Motor Lodges of Alexandria, and Ins. Co. of North America, applying for Certiorari, or writ of review, to the Court of Appeal, 331 So.2d 207, Third Circuit, Parish of Rapides.

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

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


text:
    STATE of Louisiana v. Ladonna COOPER.
    No. 57592.
    Supreme Court of Louisiana.
    June 21, 1976.

      Joseph A. Reeves, Jr., Emmons, Henry & Reeves, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Ladonna Cooper was indicted by the grand jury for the Parish of Jackson for the second degree murder of Ezra Alton Liner, in violation of La.R.S. 14:30.1(1). After trial by jury, she was found guilty of manslaughter and was thereafter sentenced to serve twelve years at hard labor. On appeal, she relies upon five assignments of error for reversal of her conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying her motion to quash the indictment on the ground that women were systematically excluded from the grand jury and the grand jury venire in violation of her constitutional rights.

The grand jury in the instant case returned an indictment against defendant on October 22, 1974. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), decided on January 21, 1975, the Supreme Court held that the Louisiana provisions for the exemption of women from juries was unconstitutional. However, in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the Court held that the Taylor ruling is not to be applied retroactively, as a matter of federal law, to convictions by juries empanelled prior to the date of the Taylor decision. This court has held, consonant with Daniel, that, as a matter of state law, Taylor would not be applied to grand and petit juries em-panelled before that decision. State v. Devore, 309 So.2d 325 (La.1975); State v. Rester, 309 So.2d 321 (La.1975). This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

On cross-examination by defense counsel, the sheriff of Jackson Parish testified that he had assisted in defendant’s arrest after her return from Dallas, Texas, and accompanied her while she was taken to the scene of the crime. Defense counsel asked him whether she made any statements following her arrest, and the sheriff replied that she “told us just what happened” while she was at the scene of the crime. The sheriff also stated that she made the statement before he advised her of her constitutional rights, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state did not introduce or in any way use this statement in the trial of this case.

However, defendant’s accomplice in the crime, John Paul Andrews, did testify against her at trial. Defendant objected to the admissibility of his testimony, contending that he was induced to testify against her at trial when he learned of her statement which, defendant suggests, inculpated him. She argues that her accomplice’s testimony was inadmissible because it was tainted by her previous statement, given without the benefit of Miranda warnings.

We find it unnecessary to consider the legal merits of defendant’s argument, since the evidence at trial did not establish that Andrews’ knowledge of defendant’s statement induced him to testify against her at trial. Andrews had made a prior inconsistent statement in which he had taken full blame for the homicide and exculpated defendant. The prosecutor asked Andrews why, after earlier refusing to inculpate defendant, he had changed his mind:

Q. Why did you tell previously that she was not involved?
A. Because of the reason she told me she was pregnant.
Q. And you found out differently?
A. Yes, sir.

Further, on recross examination, Andrews emphatically and repeatedly denied that defendant’s statement had any bearing whatsoever in his decision to testify against her at trial. Hence, the trial judge did not err in overruling defendant’s objection to the admissibility of his testimony.

Defendant also contends that the trial judge erred in overruling her objection to the introduction of the victim’s shoes in evidence. This contention lacks substance. The sheriff of Jackson Parish, called as a witness by the state, testified that he assisted in an investigation of the homicide with which defendant was charged and that he found a pair of shoes near the victim’s body, which he still had in his possession. Defense counsel stipulated that the shoes were found near the scene of the crime. The record does not reveal that the shoes were ever introduced into evidence.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, defendant complains of the admission in evidence of twenty-one photographs depicting the body of the deceased. She alleges that the photographs were admitted for the purpose of inflaming and exciting the jury’s emotions.

The first set of photographs, taken in black and white, show the deceased as he was found by the police at the scene of his death. The second set, of which some are in color and some are in black and white, show the victim’s body after it had been rolled over so that his face could be seen. Without an autopsy being made, the body was released to a funeral home and then buried. Four months later, in January, 1975, the body was disinterred and an autopsy made, at which time a third set of photographs of the body, consisting of nine pictures, was taken.

Generally, photographs of the body of the victim depicting the fatal wounds are relevant to prove the corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity, and number of wounds; and to establish the identity of the victim. State v. Beach, 320 So.2d 142 (La.1975). The test of admissibility is whether the probative value of the photographs outweighs the prejudice that may result from their display to the jury. State v. Smith, 327 So.2d 355 (La.1976). The circumstance that the photographs are gruesome does not of itself make them inadmissible. State v. Curry, 292 So.2d 212 (La.1974).

After examining the photographs in question, we are of the view that, while they are unpleasant, they are not especially gruesome. Moreover, they have distinct probative value in that they identify the location, severity, and number of the wounds the victim received. Evidence in this regard was relevant to corroborate the testimony of Andrews, who stated that he hit the victim twice in the head with a tire tool, and that defendant ran the victim over in an automobile. Further, the photographs had particular probative value in this case because of the fact that the victim’s body was disinterred for the purpose of conducting an autopsy four months after it was originally buried. As stated above, the first two sets of photographs depict the victim’s body in September, 1974, and the third set his body in January, 1975, after it was disinterred. Dr. George McCormick, a pathologist, testified that he examined the body of the deceased in January. It was therefore necessary for the jury to know that the body that Dr. McCormick examined was the same body that had been found at the scene of the crime and buried four months earlier. By viewing sets of photographs taken in both September and January, the jury was able to establish that the body Dr. McCormick examined was the same body that had been found at the scene of the crime.

Since the probative value of the photographs outweighed their possible inflammatory effect, the trial judge did not err in admitting them in evidence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

Finally, defendant complains of the denial of her motion for a new trial, contending that the trial judge committed reversible error when he spoke to the foreman of the jury, outside the presence of defendant or her counsel after the jury had retired for deliberation, about the possibility of the jury’s needing accommodations for the night. She argues that the trial judge’s conduct was proscribed by article 808 of the Code of Criminal Procedure, which provides:

If the jury or any member thereof, after having retired to deliberate upon the verdict, desires further charges, the officer in charge shall bring the jury into the courtroom, and the court shall in the presence of the defendant, his counsel, and the district attorney, further charge the jury. The further charge may be verbal.

It is our opinion that the trial judge’s statement to the jury did not constitute a charge, so that article 808 is totally inapplicable to this case. Further, defendant makes no showing that the trial judge’s speaking to the jury about their accommodations was in any way prejudicial. Hence, the trial judge did not err in refusing to grant a new trial. This assignment of error has no merit.

DECREE

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

CALOGERO, J., concurs.


text:
    STATE of Louisiana v. James Wesley BRAGGS.
    No. 57550.
    Supreme Court of Louisiana.
    June 21, 1976.
    J. Randolph Smith, DeCelle & Smith, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Park-erson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant James Wesley Braggs was charged by bill of information with the crime of distribution of marijuana, in violation of R.S. 40:966. Defendant waived his right to a jury trial, and on October 17, 1975 he was found guilty and subsequently sentenced to five years imprisonment and fined $1000 or one year in parish prison in default of the fine. On appeal he relies on two assignments of error.

The first assignment of error complained that the trial court failed “to allow the defense enough latitude in the cross-examination of the State’s witnesses as to information regarding the history behind the decision to ‘stake out’ the gasoline station where the crime was committed, and further erred in its failure to allow the defense enough latitude in its cross-examination (in its effort to show entrapment) as to conversations of and decisions made

In its per curiam the trial court noted that the objection made by the State and sustained by the court was to the following question directed to John W. Oxley, a policeman:

“Did you at any time ask this informant to ask people who came to the Skelly Station if they had marijuana for sale?”

The record reflects that the question to which the State objected was asked, in substantially the same form, twice by defense counsel and the objection to the question was sustained twice. On neither occasion did the defense inform the court of the revelance of the question. The court was not informed at the time of the objection that the defendant’s cross-examination was directed toward a defense of entrapment. Neither can we glean from the record that the objection was erroneously sustained nor that any prejudice was suffered by the defendant.

There is no merit in the first assignment of error.

In his second assignment of error the defendant maintains that “the trial court erred in its failure to properly find entrapment under the facts of this case.”

This assignment seems to be directed toward the factual finding of guilt by the trial judge. The defendant did not request that the trial judge charge himself on the law of entrapment. There were no written requested charges submitted by the defendant. There was no motion for a directed verdict. This court lacks jurisdiction to review the facts in a criminal case. Article V, § 5(C), Louisiana Constitution of 1974.

At any rate, the record supports the trial judge’s per curiam in which he stated, “Defendant’s own testimony showed that he knew that he was violating the law, intended to do so and was merely availing himself of an opportunity afforded by the police.”

There is no merit to the second assignment of error.

The conviction and sentence are affirmed.


text:
    Gloria WALKER v. BELDEN CORPORATION.
    No. 58127.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Gloria Walker applying for cer-tiorari, or writ of review, to the Court of Appeal, 331 So.2d 167, Third Circuit, Parish of LaSalle.

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

TATE, J.,

respectfully dissents. Although the majority characterizes the issue as factual, the findings of the trial court show disabling aggravation of a pre-exist-ing condition, which evidence, in my opinion, was incorrectly construed as not proving an “accident”.

DIXON, J., dissents from denial.


text:
    J. J. BRACKIN et ux. v. KANSAS CITY SOUTHERN et al.
    No. 58128.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: J. J. Brackin and Mary Brackin applying for certiorari, or writ of review, to the Court of Appeal, 331 So.2d 237, Third Circuit, Parish of Avoyelles.

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

DIXON, J., dissents from the denial.

CALOGERO and TATE, JJ., are of the opinion the writ should be granted. The trial court’s finding that the inability to control the slow-moving railway machine which was the proximate cause of the accident should not have been disturbed on review.


text:
    STATE of Louisiana Through DEPARTMENT OF HIGHWAYS v. R. L. SALTER, Sr., et ux.
    No. 58157.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: R. L. Salter, Sr., et ux, applying for Certiorari, or writ of review, to the Court of Appeal, 332 So.2d 308, Second Circuit, Parish of Jackson.

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

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

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


text:
    Virginia FIELDING v. CASUALTY RECIPROCAL EXCHANGE.
    No. 58126.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Virginia Lee Fielding, applying for Certiorari, or writ of review to the Court of Appeal, 331 So.2d 186, Third Circuit, Parish of Natchitoches.

Writ denied. The facts found by the Court of Appeal show no error of law in its judgment.

TATE, J.,

dissents, agreeing with the dissenting judges in the Court of Appeal, since the trial court’s factual finding was supported by factual evidence found by it to be credible.

DIXON, J., dissents from denial.

CALOGERO, J., dissents.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Robert Louis RABUN.
    No. 57410.
    Supreme Court of Louisiana.
    June 21, 1976.
    James D. Sparks, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Joe Rolfe White, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Robert Louis Rabun, charged with second degree murder, was tried by jury in September of 1975 and found guilty as charged. From his sentence of life imprisonment, he takes this appeal arguing that his conviction should be reversed on the basis of four assignments of error.

In brief to this Court, defendant reorganizes these four assignments into two arguments. He argues first that defendant’s rights guaranteed by the fourth and fourteenth amendments to the federal constitution were violated when he was arrested without probable cause. This argument lacks merit. The state established that Rabun was arrested on the basis of the following facts-: he was at the scene of the crime on the evening of the crime’s commission; his fingerprints were discovered near the window where the perpetrator allegedly entered the house; and the alibis he had previously given to police could not be verified. Although defendant argues that the United States Supreme Court decision in Brown v. Illinios, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) supports his position, that case is distinguishable because the policeman who arrested Brown admitted that no probable cause existed for his arrest, whereas here probable cause did exist to justify Rabun’s arrest.

Secondly, defendant argues that his rights guaranteed by the fifth and fourteenth amendments to the federal constitution were violated when the trial judge determined that a confession which defendant gave was admissible into evidence. Both of the officers described in detail that the statement was given without force, threats, or duress and aftfer proper Miranda warnings had been given. These repeated assertions were totally uncontra-dicted.

Defendant merely alleges that the statement was involuntary and in support thereof points to a g;ap in the tape recording of the statement and to defendant’s accentuated emotional tones after the break in the recording. He evidently wishes the Court to assume that defendant was threatened or beaten during the period when the conversation was not recorded. We have listened to the tape and make no such assumption. The police officers explained the gap and the defendant’s emotional tone to the satisfaction of the trial judge who found defendant’s statement to be voluntary. The tape reveals that the officers questioned the defendant calmly and meticulously, repeatedly urging him to calm down. At the end of the session they specifically asked the defendant if he had been forced to speak, and he asserted that he had spoken freely and voluntarily. The trial judge correctly found that the statement was voluntary.

Accordingly, finding no merit in defendant’s assignments of error and finding no error discoverable from the pleadings and proceedings, defendant’s conviction and sentence are affirmed.


text:
    Lester L. DUCOTE, Jr. v. Neva S. DUCOTE.
    No. 58189.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Neva S. Ducote, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette, 331 So.2d 133.

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


text:
    Mrs. Virginia West KARMGARD v. SOUTHLAND MORTGAGE AND TITLE COMPANY.
    No. 58177.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Mrs. Virginia West Karmgard, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 331 So.2d 118.

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 ex rel. Lucien Charles McGEE v. STATE of Louisiana and Sheriff, Parish of East Feliciana.
    No. 58105.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Lucien Charles McGee, applying for writ of mandamus.

Application denied; there is no error in the ruling of the trial judge.


text:
    STATE of Louisiana v. Eugene DUPRE, Jr.
    No. 58058.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Eugene Dupre, Jr., applying for Writs of Certiorari or Review.

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 Kaliste J. Saloom, Judge of the City Court of Lafayette, for the Parish of Lafayette, to transmit to the Supreme Court of Louisiana, on or before the 20th day of July, 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 13th day of October, 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. Buford MILLER v. John O. CRAFT, Sheriff of Vernon Parish, Louisiana.
    No. 58090.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Buford Miller applying for Writ of Certiorari.

Granted and assigned for hearing on September 3, 1976, without prejudice to the right to complete the psychiatric examination.

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 James C. Terrell, Jr., Judge of the Thirtieth Judicial District Court, for the Parish of Vernon, to transmit to the Supreme Court of Louisiana, on or before the 8th day of July, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the rela-tor_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 3rd day of September, 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. James E. WILLIAMS v. Hon. Frank J. SHEA, Judge, Section “G”, Criminal District Court, Parish of Orleans, New Orleans, Louisiana.
    No. 58102.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: James E. Williams, applying for writ of mandamus.

Writ granted. It is ordered that mandamus issue commanding the Judge of Section “G”, Orleans Criminal District Court to rule on relator’s petition pending in that court within fifteen days. A copy of the petition filed in the district court is transmitted herewith.


text:
    STATE of Louisiana ex rel. James E. WILLIAMS v. Hon. Frank SHEA, Judge, Section “G”, Criminal District Court, Parish of Orleans, New Orleans, Louisiana.
    No. 58103.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: James E. Williams, applying for writ of mandamus.

Writ granted. It is ordered that mandamus issue commanding the Judge of Section “G”, Orleans Criminal District Court to rule on relator’s petition pending in that court within fifteen days. A copy of the petition filed in the district court is transmitted herewith.


text:
    STATE of Louisiana v. Thomas R. BUCKLEY.
    No. 58117.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Thomas R. Buckley, applying for writs of certiorari, prohibition and mandamus.

Granted; out of time appeal ordered.


text:
    STATE of Louisiana v. William A. SHORT and John G. Short.
    No. 58124.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: State of La. through John M. Mamoulides, District Attorney, Parish of Jefferson, applying for writs of Certiorari, Prohibition and Mandamus.

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 Cyril Gracianette Judge of the First Parish Court for the Parish of Jefferson to transmit to the Supreme Court of Louisiana, on or before the 20th day of July, 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 13th day of October, 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. Dave NELSON v. CRIMINAL DISTRICT COURT IN AND FOR the PARISH OF ORLEANS, SECTION “G”, NEW ORLEANS, Louisiana.
    No. 58145.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Dave Nelson, applying for writs of mandamus.

Writ granted. It is ordered that mandamus issue, commanding the Judge of Section “G” Orleans Criminal District Court to rule on relator’s petition pending in that Court within fifteen days. A copy of the petition filed in the district court is transmitted herewith.


text:
    STATE of Louisiana v. Roy E. PLUMMER.
    No. 58125.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Edwin Lombard, Clerk, Criminal District Court, Parish of Orleans, applying for writs of Certiorari and Review.

Writ denied in part, granted in part: There is no error in the ruling of the trial court, but the contempt judgment is amended to permit the Clerk to purge himself of contempt by complying with the order.

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


text:
    STATE of Louisiana ex rel. Joseph SMITH, Jr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58085.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Joseph Smith, Jr. applying for Writ of Certiorari.

Writ denied. The ruling of the trial judge is correct. See colloquy of February 11, 1974.


text:
    STATE of Louisiana v. Maurice GIBBS.
    No. 58096.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: State of La. through District Attorney, Harry F. Connick applying for Writ of Review.

Writ denied. No error of law.


text:
    BANK OF LOUISIANA IN NEW ORLEANS v. Stephen CHARIA et al.
    No. 58098.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Steven J. Charia applying for writs of certiorari, prohibition and mandamus.

Writ denied. We find no abuse of discretion in the trial judge’s severing the main and incidental demands for trial.


text:
    STATE of Louisiana ex rel. Larry JONES v. MUNICIPAL COURT FOR the PARISH OF ORLEANS, NEW ORLEANS, Louisiana.
    No. 58100.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Larry Jones applying for Writ of Mandamus.

Writ denied. City attorney advises that he is unable to locate any pending charge against relator and that, in the event said file is located, city attorney will enter a nolle prosequi to any such charge. Hence, the matter is moot.


text:
    STATE of Louisiana ex rel. Isaac WINDER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58104.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Isaac Winder applying for Writs of Certiorari and Habeas Corpus.

Writ denied. Based on reasons of the trial judge of April 27, 1971, following an evidentiary hearing, we find no merit in the applicant’s contention of an unknowing and unintelligent plea of guilty and of ineffective assistance of counsel.


text:
    STATE of Louisiana ex rel. Lucky GOLDBERG v. Hon. Judge Martin L. LAIRD, III, 9th Judicial District Court, Parish of Rapides and Warden, Louisiana State Penitentiary.
    No. 58106.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Lucky Goldberg applying for Writ of Habeas Corpus.

Writ denied. No error in ruling of trial judge.


text:
    STATE of Louisiana ex rel. Bobby R. SPATES v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 58107.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Bobby R. Spates, applying for writ of habeas corpus, certiorari, prohibition, mandamus and other remedial writs.

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


text:
    STATE of Louisiana ex rel. Ernest C. BERGERON v. The 20TH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA.
    No. 58113.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Ernest C. Bergeron applying for Writ of Mandamus.

Application not considered. The district court informs us it has never received the original application. However, a photocopy of such original application is herewith forwarded to the trial court, for its appropriate ruling thereupon.


text:
    STATE of Louisiana ex rel. Ronald TAUZIER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58123.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Ronald Tauzier applying for Writ of Certiorari and Habeas Corpus.

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


text:
    STATE of Louisiana v. Marion HARDY.
    No. 58131.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Marion Hardy, applying for writs of Certiorari, Prohibition and Mandamus.

Writ denied. The showing made does not warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Willie VALENTINE v. C. Paul PHELPS, acting Warden, Louisiana State Penitentiary.
    No. 58133.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Willie Valentine, applying for writs of habeas corpus and certiorari.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction. The ruling of the trial judge was correct.


text:
    STATE of Louisiana v. Whitney Dale COSBY and Dennis Allan Behrmann.
    No. 58135.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Whitney Dale Cosby and Dennis Allan Behrmann applying for Writ of Review.

Application denied; there is an adequate method of review in the event of conviction.


text:
    STATE of Louisiana ex rel. John E. SPELLMAN v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 58146.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: John E. Spellman, applying for writ of mandamus.

Writ denied. Trial judge denied relator’s application for habeas corpus on June 11, 1976. The matter is moot.


text:
    Dan ALBRITTON v. William R. MCDONALD and Wayland W. McDonald d/b/a McDonald Quarter Horse Farm.
    No. 58158.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: William R. McDonald and Way-land W. McDonald, applying for writs of review, certiorari, prohibition and mandamus.

Writ refused. No abuse of discretion.


text:
    STATE of Louisiana v. Robert L. KENDALL.
    No. 58163.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Robert L. Kendall applying for writs of certiorari, prohibition, mandamus and review.

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


text:
    STATE of Louisiana v. Eddie BAZILLE.
    No. 58172.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Eddie Bazille applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused. Since the Grand Jury returned an indictment for First Degree Murder on June 2, 1976, this application is now moot.


text:
    STATE of Louisiana ex rel. Larry Joe PURKEY and James Edward Cripps v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, et al.
    No. 58182.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Larry Joe Purkey and James Edward Cripps applying for Writ of Habeas Corpus.

Not considered. Applicant must demonstrate that this relief has been sought in the trial court prior to applying here.


text:
    STATE of Louisiana ex rel. Johnny GREEN and Charles Spann v. STATE of Louisiana.
    No. 58183.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Johnny Green and Charles Spann, applying for writ of habeas corpus, remedial writs and certiorari.

Writ denied: Based on evidentiary hearing of February 11, 1976, we find no merit to the applicants’ contentions of a plea of guilty unknowing of the consequences, nor of ineffective advice of counsel.


text:
    STATE of Louisiana ex rel. Warren SCHMITT v. O. P. SCHULINGKAMP, Judge, Criminal District Court, Parish of Orleans.
    No. 58186.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Warren Schmitt, applying for writ of mandamus.

Writ denied. Application denied by district judge on April 27, 1976. Accordingly, the matter is moot.


text:
    Edward L. ARDOYNO, Jr., et al. v. Leonard S. UNGAR et al.
    No. 58188.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Edward L. Ardoyno, Jr., William J. Mora, III, applying for supervisory writs of certiorari and prohibition and mandamus.

Writ refused. As to the trial court’s judgment sustaining the exception of improper cumulation of actions and misjoin-der of parties, the remedy is by appeal as to the ruling on pre-trial discovery, there is no abuse of discretion.


text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. Hon. B. I. BERRY, Judge, Fifth Judicial District Court, Parish of Franklin.
    No. 58207.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Simon Smith, Jr. applying for Writ of Mandamus.

Writ denied. By order of May 28, 1976, the petitioner received credit for time in custody. The application is moot.


text:
    STATE of Louisiana v. Ronald Paul LAPEYROUSE.
    No. 58238.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Ronald Paul Lapeyrouse applying for writs of certiorari and review.

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


text:
    STATE of Louisiana v. J. L. GALLOW et al.
    No. 58268.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: J. L. Gallow, James Y. Gallow, Horace Tous.saint and Jimmy Ray Gallow, applying for writ of certiorari and mandamus.

Writ denied. No abuse of discretion by the trial court is shown.


text:
    McCRORY CORPORATION v. Shepard M. LATTER d/b/a the Commerce Building, et al.
    No. 58212.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Susan R. Latter, executrix of the estate of Shepard M. Latter, et al. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 331 So.2d 577.

Writ denied. The judgment is correct.


text:
    Walter R. KELLY, Jr. v. GENERAL MILLS SUPPLIES, INC. and Liberty Mutual Ins. Co.
    No. 58159.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Walter R. Kelly, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 331 So.2d 232.

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


text:
    Gilbert Wayne HEBERT v. HARTFORD ACCIDENT AND INDEMNITY CO.
    No. 58155.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Hartford Accident and Indemnity Co. applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 331 So.2d 222.

Writ denied. On the facts found, no error of law.


text:
    Emma T. BARROW v. BLEVINS POPCORN COMPANY, INC. and Michigan Mutual Liability Co.
    No. 58148.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Emma T. Barrow, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 331So.2d212.

Writ refused. Under the assignment of error and particular facts found, there is no error of law.


text:
    GULF COAST NEWSPAPERS, INC. v. Robert L. CART et al.
    No. 58142.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Robert L. Cart et al. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Acadia. 331 So.2d 177.

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


text:
    Randle BUTLER, Individually and as Tutor of his minor daughter, Elizabeth v. The LOUISIANA STATE BOARD OF EDUCATION and University of Southwestern Louisiana.
    No. 58213.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: The Louisiana State Board of Education and University of Southwestern Louisiana applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 331 So.2d 192.

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


text:
    Jerome BOURQUE, Jr. v. Adrien DUPLECHIN et al.
    No. 58249.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Adrien Duplechin applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 331 So.2d40.

Not considered; not timely filed.


text:
    STANLEY DIEFENTHAL MERMENTAU MINERAL & LAND COMPANY and Souhtern Scrap Material Co., Ltd. v. INTERNATIONAL COMPANIES, INC. d/b/a International Appraisal Company and Edgar A. Tharpe, II.
    No. 58197.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: International Companies, Inc., d/b/a International Appraisal Co. and Edgar A. Tharpe, II applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 331 So.2d 30.

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


text:
    Lewis T. BLAND v. GOVERNMENT EMPLOYEES INS. CO. et al.
    No. 58191.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Lewis T. Bland applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. The grant of the new trial was an interlocutory judgment. See Foster v. Kaplan Rice Mill, Inc., 203 La. 245, 13 So.2d 850 (1943). We find no error in the dismissal of the appeal.


text:
    Succession of Katherine Mabel PATTERSON et al.
    No. 58097.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Paul Avery Blakesley, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier. 329 So.2d 925.

Application denied; for the reasons stated in the district court opinion, the result is correct. See Chandler v. Barrett, 21 La.Ann. 58; Succession of Morere, 114 La. 506, 513, 38 So. 435, and C.C. 1788(9).


text:
    STATE of Louisiana ex rel. Roger PAYTON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Department of Corrections, et al.
    No. 58184.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Roger Payton, applying for writ of habeas corpus and certiorari.

Application denied; no error is demonstrated for which relief can be granted. The alleged tainted in-court identification and the refusal to allow inspection of the police report were fully treated on the appeal of this conviction. State v. Payton, La., 294 So.2d 211 (1974). Further, under Kirby v. Ill., 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 applicant had no right to counsel at his pre-indictment lineup.


text:
    STATE of Louisiana ex rel. Johnnie L. ROGERS v. R. MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58181.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Johnnie L. Rogers applying for writ of habeas corpus, certiorari, prohibition, mandamus, etc.

Writ refused. The contention made here was disposed of on relator’s appeal. See La., 324 So.2d 403.


text:
    STATE of Louisiana v. Lawrence PERKINS.
    No. 58110.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Lawrence Perkins, applying for writs of certiorari, prohibition, mandamus and Stay Order.

Writ granted. Conviction set aside, see State v. Jones, 316 So.2d 100 (La.1975), or the state to show cause to the contrary within 15 days from date.


text:
    STATE of Louisiana ex rel. Woodrow BEACH v. Ross MAGGIO, Warden, Louisiana State Penitentiary, et al.
    No. 58134.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Woodrow Beach, applying for writ of Certiorari.

Writ denied: Based on the evidentiary hearing of February 11, 1976, we find no factual merit to the contention by which the petitioner seeks post-conviction relief. See also State v. Beach, 279 So.2d 657 (La.1973).