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

text:
    STATE of Louisiana v. Ricky J. TERREBONNE.
    No. 62270.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      John Wilson Reed, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   SANDERS, Chief Justice.

A Grand Jury indicted the defendant, Ricky J. Terrebonne, for distribution of heroin, a violation of LSA-R.S. 40:966A. After trial, the jury adjudged him guilty. On April 15, 1976, the trial judge sentenced him to life imprisonment, subject to a credit for time served. On appeal, this Court affirmed the conviction and sentence. La., 354 So.2d 1356 (1978).

Defendant subsequently filed a habeas corpus petition in the district court, alleging that both the statute under which he was convicted and the sentence of life imprisonment were in violation of the Eighth Amendment of the United States Constitution and Article 1, Section 20 of the Louisiana Constitution (1974), prohibiting cruel, excessive, and unusual punishment. The trial judge denied the petition. This Court granted supervisory writs to consider defendant’s allegation. La., 359 So.2d 199 (1978).

In this Court, the defendant frames his argument as follows:

“The issue presented here ... is not whether a particular sentence selected by a judge within a statutorily-prescribed range is unconstitutionally excessive but rather whether the statute itself, providing a mandatory life sentence, is unconstitutional, because the statute itself imposes a sentence that may be cruel, excessive, or unusual. The attack here is on the unconstitutionality of the law that mandated the defendant’s sentence; it is not an attack upon an individual judge’s exercise of sentencing discretion within statutory limits.”

At the time of the offense, the penalty was set forth in LSA-R.S. 40:966B(1), as amended by Act 207 of 1973. That section provided:

“[U]pon conviction [a violator] shall be sentenced to life imprisonment at hard labor and, in addition, may be required to pay a fine of not more than fifteen thousand dollars.”

In State v. Whitehurst, La., 319 So.2d 907 (1975), we noted that neither probation nor parole was barred by the statute.

In a series of decisions beginning in 1975, we upheld the constitutionality of this penal clause against similar attacks. See State v. Whitehurst, supra; State v. Hopkins, La., 351 So.2d 474 (1977); State v. Stetson, La., 317 So.2d 172 (1975).

The federal courts have likewise upheld its constitutionality. See, e. g., La. Affili ate of NORML v. Guste, 380 F.Supp. 404 (E.D.La.1974); affirmed, 511 F.2d 1400 (5th Cir. 1975); cert. denied 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975).

In State v. Stetson, supra, we stated: “The penalty imposed is not so grossly disproportionate to the crimes charged as to shock the sense of justice. Cf. Castle v. United States, 399 F.2d 642 (5th Cir. 1968); Houle v. United States, 463 F.2d 1137 (5th Cir. 1972). Narcotic traffic is but one phase of a large scale, well entrenched criminal activity that springs from human greed and preys on man’s weakness — one that turns buyers into sellers, makes addicts out of newborn infants and sets addicts to mugging, thievery, prostitution, robbery and murder to support an insatiable appetite.”

In Carmona v. Ward, 576 F.2d 405 (2nd Cir. 1978), the defendant attacked the New York mandatory maximum life sentence for drug felonies as cruel and unusual punishment under the Eighth Amendment. In upholding the statute, the United States Court of Appeal, quoting from People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975), stated:

“In assessing the gravity of a criminal offense, the primary consideration is the harm it causes society. The Legislature, in making this assessment, could properly view criminal narcotics sales not as a series of isolated transactions, but as symptoms of the widespread and pernicious phenomenon of drug distribution. Social harm in drug distribution is great indeed. The drug seller, at every level of distribution, is at the root of the pervasive cycle of destructive drug abuse.
“Defendants would minimize drug trafficking by arguing that it is not a crime of violence. Because of their illegal occupation, however, drug traffickers do often commit crimes of violence against law enforcement officers and, because of the high stakes, engage in crimes of violence among themselves.
“More significant, of course, are the crimes which drug traffickers engender in others. The seller often introduces the future addict to narcotics. The addict, to meet the seller’s price, often turns to crime to ‘feed’ his habit. Narcotics addicts not only account for a sizable percentage of crimes against property; they commit a significant number of crimes of violence as well.
“Thus the Legislature could reasonably have found that drug trafficking is a generator of collateral crime, even violent crime. And violent crime is not, of course, the only destroyer of men and the social fabric. Drug addiction degrades and impoverishes those whom it enslaves. This debilitation of men, as well as the disruption of their families, the Legislature could also lay at the door of the drug traffickers.
“Measured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank.”

Life imprisonment is the maximum penalty for the distribution of narcotics in a substantial number of states. See, e. g., Arizona (Ariz.Rev.Stat. §§ 36-1002.02(A)-03(A) 1974 and Supp.1977); Idaho (Idaho Code § 37-2732(a)(l)(A) (1977); Missouri (Mo.Ann.Stat. § 195-200(1), (4) (Vernon Supp.1978); Montana (Mont.Rev.Codes Ann. § 54-132 (Supp.1977); Rhode Island (R.I. Gen.Laws § 21-28-4.01(A)(l) (Supp. 1977), and Texas (Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.03 (Vernon 1976).

The defense advances a forceful argument that the life sentence is disproportionate to the crime, especially since it makes no distinction among the various classes of distributors. The identical argument was made and rejected in Carmona v. Ward, supra. As emphasized in that decision, legislative bodies can properly view criminal narcotics sales not as a series of isolated transactions, but as a pernicious system producing widespread societal harm. As so viewed, each distributor is part of the destructive system. Hence, the argument must be rejected.

We adhere to our prior decisions and hold that the statute is constitutional.

For the reasons assigned, the judgment of the district court, denying the relief sought, is affirmed.

CALOGERO, J., concurs and assigns reasons.

TATE, J., dissents and assigns reasons.

DENNIS, J., dissents for the reasons assigned by TATE, J.

CALOGERO, Justice,

concurring.

I have reservations about whether the mandatory life sentence imposed upon all classes of schedule I narcotic drug distributors, including the addict who undertakes a transaction for personal motives, not profit, (see the dissent of Justice Tate in State v. Mallery, 364 So.2d 1283 [La.1978], No. 62,542) violates the prohibition against the imposition of excessive punishment embodied in Article I, § 20 of the Louisiana Constitution (1974). However, the fact that the penalty provision applicable to this defendant does not withhold from the sentencing judge the discretion to temper the severity of the sentence by suspending the term of life imprisonment and granting probation prompts me to refrain from dissenting in the present case. The decision to suspend sentence and place defendant on probation would not have necessarily precluded a period of incarceration, however. The sentencing judge vested with the discretion to suspend a life sentence and grant probation had available the option of imposing a term of imprisonment without hard labor for a period not to exceed one year as a condition of probation. C.Cr.P. art. 895B.

I respectfully concur.

TATE, Justice,

dissenting.

I respectfully dissent, for the reasons assigned by me in State ex rel. Mallery v. Blackburn, 364 So.2d 1283, 1285, dissenting opinion.

      . Act 631 of 1977 amended the statute, adding “without benefit of probation or suspension of sentence,” but this amendment was not in effect at the time of this 1975 offense and 1976 sentence. Hence, it is inapplicable to this case.

      . We are aware, of course, that parole consideration becomes available only after a life sentence has been commuted to a term of years. See LSA-R.S. 15:574.4B and LSA-R.S. 15:571.-7.


source: Caselaw Access Project

author: MARCUS, Justice. DENNIS, J., TATE, Justice, PER CURIAM. TATE, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Carl I. SYKES.
    No. 61403.
    Supreme Court of Louisiana.
    June 19, 1978.
    On Rehearing Nov. 13, 1978.

      Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
   MARCUS, Justice.

Carl I. Sykes and John Tasker were jointly indicted by the grand jury for the Parish of Orleans for the crime of distribution of a controlled dangerous substance, to-wit: heroin, in violation of La.R.S. 40:966. Sykes was separately tried by a jury and found guilty as charged. He was subsequently sentenced to life imprisonment at hard labor, which sentence was to run concurrently with any and all sentences imposed. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for a mistrial based on a question asked to him on cross-examination by the state concerning the details of a prior criminal conviction. He argues that the state’s question was inflammatory and caused prejudice to him in the mind of the jury.

During direct examination, defendant admitted he had on a prior occasion pleaded guilty to manslaughter. On cross-examination, the state asked the following question:

Isn’t it true that you were charged with murdering one William Johnson?

Prior to defendant’s answering, defense counsel’s objection to the question was sustained by the trial judge. Outside the presence of the jury, defendant then moved for a mistrial. The trial judge denied the motion and thereafter admonished the jury to disregard the state’s reference to the murder charge and to consider only defendant’s conviction for manslaughter.

In State v. Jackson, 307 So.2d 604 (La.1975), this court held that the state, in impeaching the credibility of a defense witness, may not only establish prior convictions of the witness, but may also cross-examine the witness about the details of the prior convictions in order to show the “true nature” of the offenses. The Jackson holding has since been extended to apply to defendants testifying in their own behalf. State v. Dupar, 353 So.2d 272 (La.1977); State v. Elzie, 351 So.2d 1174 (La.1977); State v. Victor, 347 So.2d 205 (La.1977); State v. Jackson, 339 So.2d 730 (La.1976); State v. Williams, 339 So.2d 728 (La.1976); State v. Elam, 312 So.2d 318 (La.1975).

In the instant case, although the trial judge sustained the defense objection to the question asked by the state on cross-examination of defendant, the question was proper since it sought only to put the true nature of defendant’s prior conviction for manslaughter before the jurors so that they might assess defendant’s credibility in light of his past criminal conduct. Furthermore, we do not find that the state’s question was inflammatory. Moreover, the trial judge sustained defendant’s objection to the question before it was answered and admonished the jury to disregard the question. Also, no further evidence was adduced as to the details of defendant’s prior manslaughter conviction. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a new trial in which he alleged, inter alia, that the provision for mandatory life imprisonment at hard labor for distribution of heroin prescribed by La.R.S. 40:966 inflicts cruel, excessive and unusual punishment in violation of the federal and state constitutions.

This contention has been addressed in several decisions of this court. State v. Hopkins, 351 So.2d 474 (La.1977); State v. Whitehurst, 319 So.2d 907 (La.1975); State v. Stetson, 317 So.2d 172 (La.1975). In Whitehurst, we held that mandatory life imprisonment, subject to probation and parole opportunities, but imposed without judicial consideration of any attendant mitigating circumstances, is neither excessive, nor cruel and unusual. Hence, the trial judge did not err in denying defendant’s motion for a new trial grounded on this claim.

Defendant further argues that, under the circumstances of this case, the imposition of mandatory life imprisonment at hard labor subjects him to excessive punishment in violation of La.Const. art. I, § 20.

La.Const. art. I, § 20 provides in pertinent part:

No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. . . . (Emphasis added.)

Some members of this court, including the author of this opinion, are of the view that this constitutional provision only gives to this court the judicial power to declare as unconstitutional laws which provide for excessive sentences rather than extending the judicial power to appellate review of sentences imposed in individual cases. Other members of the court interpret the provision as conferring upon this court constitutional authority to review sentences imposed in individual cases. However, we need not resolve this issue in the present case for, under either interpretation of the constitutional provision, the sentence imposed here is not excessive in view of the fact that, by his own admission, defendant knowingly and intentionally distributed to an undercover narcotics agent three bundles of heroin totaling seventy-five individual dosage units of the controlled dangerous substance. Defendant also admitted to having been convicted of criminal trespass (twice), interstate shipment of stolen goods, and manslaughter.

It should also be observed that, if a majority of this court ultimately was to conclude that we have constitutional authority to review sentences imposed in individual cases and was to find the sentence excessive in a case like this where the penalty provision is mandatory (life imprisonment), we would be faced with the additional issue as to the sentence to be imposed.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant contends the trial judge erred in denying his supplemental motion for a new trial in which he alleged that the state’s dismissal of the indictment against his co-defendant, John Tasker, because of a defect in the state’s case against him, constituted an admission by the state that the case against defendant was likewise defective, since the evidence against the two co-defendants was the same. He argues that any defect in the state’s case against him constituted evidence favorable to the accused which the state was obligated to furnish to the defense. He further assigns as error the rulings of the trial judge at the hearing of this matter in which the judge sustained the state’s objections on the ground of relevancy to defense questioning of witnesses relative to the dismissal of the indictment against his co-defendant, Task-er.

Defendant and Tasker were jointly indicted for the crime of distribution of a controlled dangerous substance, to-wit: heroin. Prior to trial, defendant filed a motion for severance grounded on a claim of antagonistic defenses. The motion was granted by the trial judge. Subsequently, defendant was separately tried by jury and found guilty as charged. Sentence was imposed by the court. Approximately six weeks after defendant’s conviction and three weeks after sentencing, the state dismissed the indictment against Tasker. About two weeks later, based on a newspaper article in which District Attorney Harry Connick reportedly stated that the charge against Tasker had been dismissed because the case against him “was defective,” defendant filed a supplemental motion for a new trial claiming that the state’s case against him was likewise defective since the evidence against him was the same as that against his co-defendant. Therefore, he asserted that the granting of a new trial was warranted.

At the new trial hearing, among those witnesses called by the defense in support of the motion was District Attorney Con-nick who testified that he knew of no defect in the state’s case against defendant. He further stated he had discussed the case with his assistants and had been informed that the state had no evidence in its possession favorable to the accused. The state reiterated throughout the new trial hearing that it did not possess any evidence favorable to defendant. During defendant’s examination of the witnesses called to testify at the hearing, the state repeatedly objected on the ground of relevancy to defense questioning pertaining to the state’s dismissal of the charge against Tasker. The objections were sustained by the trial judge. Subsequently, defendant applied to this court for supervisory writs alleging error in the rulings of the trial judge in sustaining the state’s objections to defense questioning of witnesses regarding the nolle prosequi of the case against Tasker. He asserted that the trial judge’s rulings prevented him from establishing that the state had in its possession evidence exculpatory to the defense which it had failed to disclose. Finding no error in the rulings complained of, this court denied defendant’s application for supervisory writs. State v. Sykes, 331 So.2d 492 (La.1976).

Pursuant to La.Const. art. 5, § 26(B), except as otherwise provided by the state constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district. See La.Code Crim.P. art. 61; La. R.S. 16:1. La.Code Crim.P. art. 691 specifically provides:

The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on the minutes of the court. (Emphasis added.)

The entering of a nolle prosequi rests entirely within the discretion of the prosecuting attorney. State v. Franton, 319 So.2d 405 (La.1975); City of Lake Charles v. Anderson, 248 La. 787, 182 So.2d 70 (1966); State v. Broussard, 217 La. 90, 46 So.2d 48 (1950). Hence, the state possessed absolute discretion to dismiss the indictment with respect to Tasker.

It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material to either guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Cass, 356 So.2d 936 (La.1977); State v. Williams, 349 So.2d 286 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977). In the instant case, the state affirmatively stated that it did not possess any evidence favorable to defendant. Furthermore, the district attorney testified that the state’s case against defendant was not defective. Hence, we reject defendant’s contention that the state possessed evidence favorable to the defense, particularly evidence indicating that the case against him was defective. Accordingly, the trial judge did not err in denying defendant’s supplemental motion for a new trial grounded on this contention.

Assignments of Error Nos. 3 and 4 are without merit.

The record discloses that defendant was sentenced on the same day that his motion for a new trial was filed. The record does not reflect when this motion was denied. La.Code Crim.P. art. 873 provides that, if a motion for a new trial is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled absent an express waiver of the delay by defendant. The record reflects no waiver of the delay. Thus, defendant’s sentence was illegally imposed. Even though defendant did not object to this, error at the time of sentencing or urge it on appeal, the error shall be considered by this court since it is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La. Code Crim.P. art. 920(2); State v. Hutto, 349 So.2d 318 (La.1977); State v. Young, 337 So.2d 1196 (La.1976); State v. Quinn, 288 So.2d 605 (La.1974). Hence, the sentence must be vacated and the case remanded to the trial court with instructions that defendant be sentenced in accordance with law.

DECREE

For the reasons assigned, the conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the Criminal District Court for the Parish of Orleans, with instructions to the trial judge to sentence defendant in accordance with law.

TATE, J., dissents and assigns reasons.

DIXON, J., concurs.

CALOGERO, J., concurs.

DENNIS, J.,

dissents for the reasons assigned by him in State v. Terrebonne, La., 354 So.2d 1356 and also disagrees with this court’s refusal to reconsider and overrule State v. Jackson, La., 307 So.2d 604 (1975), regarding to cross-examination of the defendant on details of prior convictions.

TATE, Justice,

dissenting.

I am prompted to dissent by the extreme injustice of the life sentence imposed upon this addict — especially since the charge for the identical transaction was nol prossed against the large-scale dealer (for whom the life imprisonment was presumably designed) who had used the defendant as an impromptu messenger, who received in return a small amount of heroin needed by this addict for his day’s use.

The circumstances of this transaction are as follows:

Taplin, an undercover police officer, arranged to buy 75 bags of heroin for $525 from John Tasker, a wholesale dealer. When Taplin appeared at the scene of the transaction, Tasker sent the defendant Sykes to him.

Upon Taplin’s demurrer that his deal was not with Sykes, Tasker came over and got the money from Taplin. Then, Tasker and Sykes went upstairs, and Sykes returned with the three bundles (75 bags) of heroin and delivered it to the undercover agent.

Tasker was called as a witness at the defendant’s trial and refused to testify as to the transaction, exercising his constitutional privilege.

Sykes testified in his own defense. He admitted to a criminal record (three misdemeanors, one manslaughter plea, and one federal charge of interstate transportation) in 1961-64, but stated he had been out of prison since 1965 (some ten years prior to the present offense).

He fully admitted his participation in the transaction. He stated he had been an addict for nine years and that, earlier on the day of the transaction, he had made a deal with Tasker to trade his black leather jacket for some heroin for his habit.

Just then, the undercover agent (Taplin) drove up, and Tasker told Sykes that, if he delivered the three bundles to Taplin, Task-er (the dealer) would give the defendant Sykes five bags of heroin (about a day’s or half a day’s supply for his habit).

Sykes received no money for his messenger work, nor did he participate in the exchange of money by which Taplin paid Tasker. He had never before worked for or bought heroin from Tasker, and Tasker had solicited him to make the delivery. He was, nevertheless, technically guilty of the offense as broadly defined by the statute.

The jury convicted (10-2) the defendant of distribution of heroin. The defendant was sentenced to life imprisonment (with benefit of probation, suspension or parole), the mandatory sentence then required upon conviction. La.R.S. 40:966 B(l) (1973).

No objection was made at the time of sentencing. However, by motion for a new trial, the defendant asserted that the life imprisonment provided by the statute was in violation of the federal constitution’s Eighth Amendment and of the prohibition of La.Const. of 1974, Art. 1, Section 20, against cruel, excessive, or unusual punishment.

At the motion for a new trial, the defendant proved that the prosecutor had nol prossed the indictment against Tasker (the wholesale dealer, who had impromptu solicited Sykes to act as his messenger in his transaction with the undercover agent). The prosecutor refused to disclose his basis for this action, despite the defendant Sykes’ strong argument that the dismissal must have been on the basis of Brady type information which had been withheld from Sykes (despite his Brady motion).

We have held that, where the individual application of the law is the basis for a claim of excessive sentence under the circumstances, there must be an objection at the time of sentencing to preserve the issue for appellate review (and to afford the trial judge an opportunity to disclose the factual basis for his overruling of the objection). State v. Williams, 340 So.2d 1382 (La.1976). (Here, the excessiveness was not asserted until a few hours later on the same day, by the motion for a new trial.) However, we have not required the objection in order for us to pass upon the alleged facial unconstitutionality of a sentence imposed by statute. State v. Whitehurst, 319 So.2d 907 (La.1975).

In Whitehurst, we held that the present enactment and its mandatory life sentence did not impose an excessive sentence for the offense (prior to its 1977 amendment), taking into consideration the probation and parole opportunities which might permit individualized consideration where appropriate to take mitigating circumstances into consideration.

For the reasons stated in my concurring opinion in State v. Terrebonne, 354 So.2d 1356, 1357 (La.1978), I am now of the opinion that we should reconsider our holding in Whitehurst. The present case is an instance of the arbitrary and irrational application of the life penalty to an addict who performed a minor role in a distribution (for the only time in his life), and who was recruited by a wholesaler aware of the addict’s desperate need for his daily usage— whereas the wholesaler himself, although charged and apparently without contradiction guilty of the major role in the transaction, is (for whatever reason) scotfree of any penalty because the charges against him has been nol prossed.

I therefore respectfully dissent.

On Rehearing

PER CURIAM.

Upon the defendant’s application, a rehearing was granted to reconsider our rejection in our original opinion of the contention that the life sentence here imposed was unconstitutionally excessive. We granted rehearing because we felt that the issues thus presented might also be under review in proceedings argued before us while the application was pending. See State v. Terrebonne, 364 So.2d 1290 (this date decided) and State v. Mallery, 364 So.2d 1283 (this date decided).

Upon our reconsideration, we again find no merit in the contentions of excessiveness, for the reasons assigned by us in the original hearing, as well as in the Terrebonne and Mallery cases this date decided.

Accordingly, our original decree is reinstated.

TATE, J., dissents and assigns reasons.

CALOGERO, J., concurs for reasons assigned in State v. Terrebonne, 364 So.2d 1290, decided this date.

DENNIS, J., dissents for the reasons assigned by TATE, J.,

TATE, Justice,

dissenting.

I respectfully dissent from the reinstatement of the life sentence, for the reasons assigned by me in this case on original hearing, in my concurring opinion in State v. Terrebonne, 354 So.2d 1356, 1356 (La.1978), and in my dissenting opinion in State ex rel. Mallery v. Blackburn, 364 So.2d 1283, 1285 (this date rendered).

      . The crime charged herein is alleged to have occurred on May 19, 1975. Defendant was sentenced on December 12, 1975. La.R.S. 40:966 B(l) then provided for a mandatory sentence of life imprisonment at hard labor. The penalty provision contained in La.R.S. 40:966 B(l) subsequently was amended by La. Acts No. 631, § 1, effective September 9, 1977, to provide for a mandatory sentence of life imprisonment at hard labor without benefit of probation or suspension of sentence. The new penalty provision is not applicable to the instant prosecution.

      . We recently granted a writ of habeas corpus to review these issues. State v. Terrebonne, 359 So.2d 199 (La.1978). In view of our finding that the sentence imposed in the instant case is not excessive, we need not resolve these issues in this case.

      . Act 631 of 1977 made the mandatory life sentence imposed to be without benefit of probation or suspension of sentence.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. David J. HYSELL.
    No. 62152.
    Supreme Court of Louisiana.
    Nov. 20, 1978.
    Rehearing Denied Dec. 14, 1978.

      Harry R. Nelson, Nelson & Achee, Ltd., Shreveport, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was convicted of possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. He was sentenced to serve four years at hard labor; the sentence was suspended on the condition that he serve one year in the parish prison, enter a drug rehabilitation program, and be placed on supervised probation for four years. On this appeal of his conviction and sentence, defendant relies on thirty-five assignments of error grouped and presented in seventeen arguments. We have reviewed the assignments included in Arguments III, IV, V, VI(A), VI(B), VI(C), VI(D), VI(F), VI(I) and VI(K) and conclude that they lack merit. We find it necessary to discuss only the remaining arguments.

ARGUMENTS I AND II

ASSIGNMENT OF ERROR NO. 1A

In these related arguments defendant contends that the trial judge erred in denying his motion to suppress in which he argued that the affidavit supporting the warrant failed to establish probable cause and that the warrant itself failed to designate with sufficient particularity the place to be searched.

The testimony at the hearing at the motion to suppress revealed the following facts. Officers Bolen and Guy of the Shreveport Police Department learned from a confidential informant that a white male called “Joe” was selling marijuana from an upstairs apartment above Alice’s Beauty Salon on the east side of 2814V2 Wheless Avenue in Shreveport. The officers went with the informant to that address and had him point out the apartment.

With the information given by the confidential informant and while two other officers kept the upstairs east apartment under surveillance, Officers Bolen and Guy attempted to obtain a search warrant. Before applying for the warrant Officer Bolen checked the Shreveport City Directory and learned that a Joseph Michael Filipowski lived at 2814V2 Wheless Avenue. He then ran Filipowski’s name through a Narcotics Intelligence File check and learned that Fi-lipowski had previously been arrested on drug charges. Using this information to supplement the information given by the informant, Officers Bolen and Guy swore out the affidavit.

Upstairs at that municipal street address, there were in fact two apartments. One on the east side of the building was rented to Iva Williams. The other on the west side was registered to Joseph Michael Filipow-ski. Defendant, who was sometimes called “Joe”, lived in the east apartment with Iva Williams.

In brief defendant contends that because of erroneous information in the affidavit, it established probable cause to search the apartment of Joseph Filipowski on the west side but not the apartment on the east side in which defendant was arrested.

This Court in State v. Rey, 351 So.2d 489 (La.1977) adopted the approach taken by the Fifth Circuit in United States v. Thomas, 489 F.2d 664 (5th Cir. 1973) to determine whether probable cause exists when there are inaccurate statements in the affidavit supporting the warrant. In Rey, we concluded that:

“. . . when faced with an affidavit containing inaccurate statements the preferred approach is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a different result is required. Because these distorted statements constitute a fraud upon the courts and represent impermissible overreaching by the government, a warrant based on an affidavit containing intentional misrepresentations must be quashed.
. The primary purpose of the exclusionary rule is the deterrence of such deliberate governmental wrongdoing, and this policy is best served by quashing the warrant.” (Emphasis provided)

Defendant does not contend nor does the record reflect that Officer Bolen intentionally included inaccuracies in the affidavit. On the basis of the informant’s tip that a person called “Joe” living in the east apartment at 2814V2 Wheless Avenue was selling marijuana, he checked the Shreveport City Directory to determine who lived at that address. Finding that the occupant listed for that address was named Joseph Filipow-ski, he ran the name through the police files and found a narcotics related arrest. It was this information which seemed to the officer to corroborate the informant’s story and which was thus included in the affidavit. It was not designed as a deliberate act to deceive the issuing magistrate that probable cause did exist.

Because the inaccuracies were not the result of intentional misrepresentation, we must under State v. Rey, supra strike the inaccurate information and examine the residue to determine if it supports a finding of probable cause. When we do we find that Officer Bolen had information from an informant who had given information in the past which had led to at least one arrest and conviction for possession of marijuana that the informant had within the past twenty-four hours observed a white male called “Joe,” who lived upstairs at 281472 Wheless Avenue on the east side with no less than ten bricks of marijuana which “Joe” was selling for $125.00 a pound.

Under the two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and the guidelines established in State v. Paciera, 290 So.2d 681 (La.1974), we determine that even without the inaccurate information, the affidavit establishes probable cause.

In Aguilar v. Texas, supra, the United States Supreme Court set forth the criteria which a magistrate must follow in determining whether an affidavit based upon hearsay establishes probable cause for the issuance of a warrant: First, the affiant must articulate the basis for his belief that the information is trustworthy, and second, the affidavit must indicate the underlying circumstances from which the informant concluded that narcotics were where he contended that they would be. In State v. Paciera, supra, this Court deduced the following rule to measure the sufficiency of a supporting affidavit which is based on informant-supplied data:

“The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.”

The affidavit in the instant case satisfies the first requirement of Aguilar. It states that the informant has given accurate information about four drug dealers and that his information had led to the arrest and conviction of one individual for possession of marijuana with intent to distribute. These facts are sufficient to establish the credibility of the informant. State v. Richards, 357 So.2d 1128 (La.1978).

The affidavit also satisfies the second requirement of Aguilar — that it set forth the underlying circumstances from which the informant concluded that narcotics would be where he contended they would be. The affidavit includes the information that the informant had within the past twenty-four hours been in the apartment and seen a man called “Joe” selling bricks of marijuana for $125.00. The information was based upon the informant’s personal observation of the defendant within the preceding twenty-four hours.

Defendant’s argument that the search warrant lacked sufficient particularity also lacks merit. He contends that because there are two apartments at the municipal address, the warrant which described the place to be searched only as 2814V2 Wheless is defective.

The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with the reasonable probability that they will not search the wrong premises, the description is sufficient. State v. Cobbs, 350 So.2d 168 (La.1977); United States v. Prout, 526 F.2d 380 (5th Cir. 1976). The officers in this case knew which apartment they intended to search for the informant had physically pointed to the apartment on the east side of the building. Officers Bolen and Guy specifically identified in the affidavit the place to be searched as the apartment on the east side above Alice’s Beauty Salon closest to Wheless Avenue, and it was these same officers who executed the warrant. The officers intended to and did indeed search the upstairs apartment on the east side of 2814V2 Wheless Avenue. Under these circumstances we find that the description in the warrant was sufficient to insure that the officers who in fact were to search the apartment would not search the wrong apartment.

This assignment lacks merit.

ARGUMENT VI(G)

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying his challenge for cause of a prospective juror who volunteered on voir dire examination that if he were the trial judge, he would “deal harshly” with the defendant if he were found guilty.

Louisiana Code of Criminal Procedure article 800 provides that a defendant can not complain of a ruling refusing to sustain a challenge for cause unless his peremptory challenges shall have been exhausted before completion of the panel. In this case, defendant exercised only eleven of his peremptory challenges, and thus can not be heard to complain of the court’s ruling.

This assignment lacks merit.

ARGUMENT VI(J)

ASSIGNMENTS OF ERROR NOS. 5, 8, 13, 15, 17, 18 AND 25

Defendant assigns as error the trial court’s admission into evidence of photographs of the interior of the apartment in which he was arrested and of evidence seized at the time of the arrest. In brief, he argues that the photographs were prejudicial and inflammatory, while at trial he objected that the photographs were immaterial and irrelevant.

Under Article 841 of the Code of Criminal Procedure, an irregularity or error can not be availed of after verdict unless the party makes known his objection and the grounds for it. He must state the basis of the objection so that the trial judge has an opportunity to rule on it and prevent or cure an error. State v. Lewis, 353 So.2d 703 (La.1977). Defendant’s objection at trial was that the photographs were “immaterial and irrelevant” and not that they were prejudicial and inflammatory. The trial judge properly ruled that the photographs were relevant.

Even if the defendant had objected to the photographs on the grounds that they were prejudicial and inflammatory, this assignment would lack merit. All of the “evidence” introduced by way of the photographs was independently introduced through the items seized at the time of the defendant’s arrest. The photographs introduced at trial did not include any non-admissible evidence which would be prejudicial to the defendant or inflame the jury.

ARGUMENT VI(H)

ASSIGNMENT OF ERROR NO. 10

Defendant contends that the trial judge impermissively restricted his cross-examination of Officer Bolen when he sustained the prosecutor’s objection to the following question: “Agent Bolen, on that evening of— proceeding with the search warrant, in your affidavit did you not indicate the name of a third party, . . . .” The prosecutor objected to “going into the affidavit” because the issue of probable cause was not before the court. After a discussion out of the presence of the jury, the trial judge sustained the prosecution’s objection and defense counsel resumed cross-examination with a new line of questioning.

The trial judge’s ruling indicated that he sustained the objection to the question because it raised issues which had been resolved at the hearing on the motion to suppress. Defendant argued that he was not attempting to re-open the issue of probable cause set forth in the affidavit but was simply attempting to ask a question “which may be of some value in representing [his] client.” Counsel’s failure to give a more precise explanation of the relevancy of the question independent of the issue of probable cause perhaps justifies the trial judge’s ruling. However, even assuming that the trial judge erred in disallowing defendant’s question, reversal of his conviction and sentence would not be warranted. Not every trial error or violation of a statutory right mandates reversal of a conviction. La.Code of Crim.Pro. art. 921. State v. Ardoin, 340 So.2d 1362 (La.1976). This Court may consider the importance of the effect of the alleged error in light of the balance of the state’s case. State v. Pool, 361 So.2d 1202 (La.1978).

The state in this case presented substantial evidence of the defendant’s guilt. The marijuana was lawfully seized in the defendant’s presence in the apartment in which he resided, and he made inculpatory statements to his landlord in the presence of the arresting officers. Error in the trial court’s ruling, if any, was of negligible consequence and not a substantial violation of defendant’s rights.

ARGUMENT VI(E)

ASSIGNMENT OF ERROR NO. 30

Defendant contends that the trial judge erred in admitting into evidence the search warrant issued for 2814V2 Wheless Avenue and the return indicating the evidence seized in the search. He argues that allowing these documents into evidence is prejudicial because there was no showing of the truth of the assertions contained therein and because the return reflected described evidence not admissible at the trial.

This assignment lacks merit. The only two documents admitted were the search warrant and the return; the affidavit in support of the warrant was not offered or admitted into evidence. The only information on the face of the warrant was that Officers Bolen and Guy swore out affidavits that they had reason to believe that marijuana was concealed at 2814V2 Wheless Avenue. On the reverse of the warrant, the return listed fourteen items seized in the apartment, all of which were subsequently introduced at the trial. Neither the search warrant nor the return referred to evidence not independently admitted at trial. We find no prejudice resulted from the admission of these two documents.

ARGUMENT VI(L)

ASSIGNMENT OF ERROR NO. 35

Defendant contends in this assignment that the trial court erred in sentencing the defendant. In brief he argues only that “the court erred in rendering sentence imposed on defendant. Reference is made to transcript of sentencing.”

Defendant was sentenced to serve four years at hard labor, sentence suspended on the condition that he serve one year in the parish prison, enroll in a drug rehabilitation program, and remain on supervised probation for four years. R.S. 40:966 provides a maximum sentence for a conviction of possession of marijuana with the intent to distribute of ten years at hard labor and a fine of not more than $15,000. Under this statute, defendant’s four year sentence is not excessive. The conditions of his suspended sentence are also not unlawful. The conditions that defendant serve one year in the parish prison and remain on probation for four years are provided for in La.Code of Crim.Pro. arts. 895(B) and 893. Under Article 895(A), the condition that he participate in a drug rehabilitation program is also permissible. Because we find no error in defendant’s sentence, we conclude that this assignment lacks merit.

Decree

For the foregoing reasons, the conviction and sentence of defendant, David Hysell, is affirmed.

AFFIRMED.

      .The arguments and assignments which we do not discuss herein are as follows:
      1. Arguments III and VI(K) in which defendant contends that the trial judge erred in admitting evidence of the unserved affidavit and allowing the affidavit to supply the necessary particularity of the warrant (Assignments lb and lc).
      2. Argument IV in which the defendant contends that the trial judge erred in ruling that the statement made during an illegal search was admissible (Assignment 3).
      3. Argument V in which the defendant contends that the trial judge erred in admitting the statement made by the defendant during custodial interrogation (Assignment 27).
      4. Argument VI in which the defendant contends that the trial judge erred in denying a motion for a mistrial based on prejudicial conduct of the proceedings (Assignment 32).
      5. Argument VI(A) in which the defendant contends that the trial judge erred in qualifying a state witness as an expert in the field of law enforcement and drug abuse (Assignment 31).
      6. Argument VI(B) in which the defendant contends that the trial judge erred in permitting jurors to pass around exhibits (Assignment 34).
      7. Argument VI(C) in which defendant contends that the trial judge erred in allowing non-expert testimony concerning the smelling and identification of the material as marijuana (Assignments 6, 14 and 22).
      8. Argument VI(D) in which the defendant contends that the trial judge erred in permitting testimony regarding innocent items branded as drug related (Assignments 20, 23 and 24).
      9. Argument VI(F) in which the defendant contends that the trial judge erred in permitting leading questions concerning the voluntary nature of defendant’s confession (Assignments 9, 11, 12, 16, 19, 21 and 26).
      10. Argument VI(I) in which the defendant contends that the trial judge erred in permitting testimony about items prior to their identification (Assignments 4 and 7).

      . Defendant did not assert in a formal assignment that the affidavit failed to set forth probable cause, but he has argued it extensively in brief. Nonetheless we consider that argument herein.

      . The text of the affidavit recites as follows:
      “On December 21, 1976, at approximately 10:00 P.M., Agent Sam Bolen and Sgt. R. L. Guy met with a confidential reliable informant, hereafter referred to as C.I. This C.I. must remain anonymous in order to insure his personal safety. The C.I. stated:
      1. That a white male known as Joe lives in the apartment which is located above Alice’s Beauty Shop at 2814 Wheless Ave. Joe’s apartment is the east side, upstairs (the apartment closest to Wheless Avenue).
      2. That Joe is a wholesale distributor of marijuana. That Joe sells large quantities of marijuana, usually by the pound.
      3. That within the past 24 hours the C.I. has been in Joe’s apartment and while there saw no less than 10 one pound bricks of marijuana, which Joe was selling for $125.00 per pound.
      Agent Sam Bolen and Sgt. R. L. Guy went to 2814 Wheless Avenue and saw that at that address the downstairs portion is identified as Alice’s Beauty Shop by a sign on the outside and that there is an apartment above the Beauty Shop which can be reached by climbing the stairs, northside, of the structure.
      Agent Bolen checked the Shreveport City Directory and found that 2814‘/2 Wheless Avenue is listed to Joseph Filipowski. Agent Bolen recognized the name and went to the Shreveport Police Department Narcotic Intelligence File and found a card on Joseph Michael Fili-powski, white male, D.O.B. 8-10-54, address 2814V2 Wheless. This card showed that on 8-11-75, Filipowski was arrested for possession of Hashish with intent to distribute. It also showed that on 8-28-75 Narcotic Agents received information regarding Filipowski’s involvement in the illicit drug traffic.
      Sgt. Guy has received information from this C.I. on several occasions regarding no less than four (4) drugs dealers and pertaining to their illicit drug activities. Sgt. Guy has checked this information and found it to be true and correct. On at least one occasion Sgt. Guy used information furnished by this C.I. to arrest one individual and seize a large quantity of marijuana. That individual was convicted of possession of marijuana with intent to distribute as a direct result of the above mentioned arrest.
      Agent Bolen and Sgt. Guy feel that there is probable cause to believe that marijuana is located in Joe’s apartment which is above Alice’s Beauty Shop at 2814 Wheless Avenue and request that a search warrant be issued.”

      . The record does not indicate for certain whether the two upstairs apartments have any differentiating markings, only that the east side apartment was the only one which really had “an assigned number” (2814*/2 Wheless Avenue). We glean from the record that on the north side of the building there was an exterior staircase which at the top of the first level branched toward two doors. One of them led to the east portion of the second floor and the other to the west portion of the second floor.

      . The transcript of the voir dire examination indicates that this prospective juror did not serve because after the trial judge denied the challenge for cause, defense counsel excluded him through a peremptory challenge.


author: PER CURIAM. TATE, Justice,

text:
    STATE of Louisiana v. Charles A. HEALY.
    No. 62060.
    Supreme Court of Louisiana.
    Nov. 22, 1978.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, J., dissents with written reasons.

DENNIS, and DIXON, JJ., dissent for the reasons assigned by TATE, J.

TATE, Justice,

dissenting.

Gruesome photographs of the shaven corpse of the victim were admitted into evidence, although the defendant stipulated to identity of the victim. The photographs were introduced for the sole purpose of their shocking and prejudicial effect. State v. Gilmore, 332 So.2d 789 (La.1976) requires reversal.

In addition, borderline error was committed by the denial, under the allegations, of exculpatory evidence that a paraffin gun-firing detection test conducted on the defendant was negative. However, the issue may be reviewed by a post-conviction proceeding and thus does not require reversal.


author: PER CURIAM. DENNIS, Justice,

text:
    STATE of Louisiana v. Michael Tyrone BLANSON.
    No. 62096.
    Supreme Court of Louisiana.
    Nov. 22, 1978.
    Bruce B. McKeithen, LaCroix & McKeithen, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Carl Par-kerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DENNIS, J. dissents and assigns reasons.

DENNIS, Justice,

dissenting.

Although I agree with the majority opinion in other respects, I do not believe that this Court should slavishly follow a federal standard in deciding the degree of judicial scrutiny required by our constitution of possible racial discrimination in jury selections. It is evident that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in reality denies all relief to a black defendant who has been deprived of an impartial jury through the State’s use of its peremptory challenges to exclude members of his race from the jury. Yet a majority of this Court clings to the Swain test which has never been met by a defendant in a reported decision, and which exalts the prosecution’s statutory right to peremptory challenge over the defendant’s constitutional right to a fair and impartial jury. For the reasons more fully stated in my concurring opinion in State v. Kelly, 362 So.2d 1071, 1079 (La.1978), I think that Article I, § 3 of the 1974 Louisiana Constitution, by absolutely prohibiting racial discrimination by governmental officials, requires judicial inquiry into the reasons for the State’s peremptory challenges whenever it is clear that the prosecutor has exercised them against a disproportionate number of prospective jurors of a particular race. See also, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Accordingly, since it appears there were a disproportionate number of state peremptory challenges against prospective black jurors in this case, I would remand for a hearing on the question of whether the challenges were based to any extent on race, reserving to both sides the right to seek relief in this Court from the district court’s ruling.

I respectfully dissent.


author: PER CURIAM.

text:
    STATE of Louisiana v. Leon D. ROPER.
    No. 62525.
    Supreme Court of Louisiana.
    Nov. 22, 1978.

      Cameron C. Minard, Columbia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Carl Par-kerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Leon D. Roper was charged by grand jury indictment with second degree murder in violation of La.R.S. 14:30.1. On February 7, 1978, after trial before a jury of twelve persons, defendant was found guilty of the responsive verdict of manslaughter. Subsequently he was sentenced to serve nine (9) years at hard labor in the custody of the Department of Corrections. Defendant now appeals to this Court.

We have reviewed defendant’s two formal assignments of error and conclude that they lack merit. However, we do find meritorious defendant’s argument that the trial court failed to comply with the provisions of Article 894.1 of the Code of Criminal Procedure. That article sets forth grounds for imposition of sentence and factors which should be accorded weight in the trial court’s determination to suspend sentence or place a defendant on probation. It additionally provides that the “court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” The record in this case does not reflect that the trial court complied with this mandate to particularize the sentence to this defendant. See State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978).

Accordingly, we vacate defendant’s sentence and remand the case to the trial court with instructions to resentence defendant in accordance with law.

DENNIS, J., concurs, but would also remand for a hearing on whether the state should have disclosed information pertaining to the victim’s criminal record.

SUMMERS, J., dissents from the remand being of the opinion that an objection to the failure to comply with Article 894.1 of the Code of Criminal Procedure is required before this court can consider such an issue.


author: JONES, Judge. HALL, Judge,

text:
    Earline FITCH, Plaintiff-Appellant, v. Delbert EVANS et al., Defendant-Appellee.
    No. 13657.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    Rehearing Denied Dec. 13, 1978.

      Bruscato & Loomis by Albert E. Loomis, III, Monroe, for plaintiff-appellant.
    Kostelka & Swearingen by Robert W. Kostelka, Monroe, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a judgment rejecting her demands for damages for personal injuries which she sustained as a pedestrian, as the result of an impact between her and a motor vehicle operated by defendant, Mrs. Evans.

The accident occurred adjacent to gasoline pumps on the premises of a convenience store. Plaintiff had entered the store and purchased cookies and soft drinks for a snack on the banks of a creek to which she was in route to go fishing. Mrs. Evans had driven up to the pumps located in front of the store to purchase gas. She had driven her car between the pumps and the store building. As she stopped at the pumps, the gasoline attendant advised her that the hose on the pump would not reach her tank on the back of the car. She was told to back out of her position, engage in a turning maneuver, and back the rear end of her car adjacent to the pumps. There were several cars parked and people standing in front of the store. The defendant was therefore required to make her backing maneuver in a congested area.

As Mrs. Evans prepared to back up she looked to her left and observed the plaintiff several feet away standing near the door of the store. Mrs. Evans turned her head to the right and looked over her shoulder through the rear glass of her automobile as she commenced to back. After she had backed a distance of a very few feet (estimated by the witnesses from 2 to 5 feet) she heard a pounding on the left side of her car and immediately stopped. She was advised that there had been a collision between her car and plaintiff.

Plaintiff and two of her friends who were accompanying her on the fishing trip testified that plaintiff had walked across the area between the gas pumps and the store directly to the rear of Mrs. Evans’ parked car, at which time Mrs. Evans suddenly backed into plaintiff and injured her.

Plaintiff was not knocked down by the impact between her and the automobile, nor did she drop the items which she had purchased in the store, but she did lose one of her shoes as a result of the impact. One of plaintiff’s friends testified he picked the shoe up from under the rear of defendant’s car.

Mrs. Evans testified that at the time she stopped her car, plaintiff was standing on the left side of the rear portion of her vehicle. Mrs. Evans further testified that she had made constant and continuing observations through her rear window as she proceeded to back and was certain that no one had stepped into the path of her backing automobile. A disinterested witness testified that plaintiff walked into the side of Mrs. Evans’ backing vehicle at the back fender near the rear wheel and rear bumper. This witness was in front of the store, looking directly at defendant’s car and plaintiff when the accident occurred. He testified he picked up plaintiff’s shoe near the left rear side of defendant’s car.

The trial court found that the accident occurred when plaintiff walked into the side of Mrs. Evans’ automobile, which finding he based upon testimony of the disinterested witness. Trial court made the following statement concerning this finding in its reasons for judgment:

“A factual dispute exists as to whether plaintiff had walked behind the car, was struck and knocked up on the rear trunk or had walked into the side of the car and was knocked backwards.
Since there are discrepancies in the testimony of plaintiff’s witnesses, the Court accepts and relies on the testimony of James Williams, who was the only independent eye witness. Williams was emphatic that plaintiff was not struck by the rear of the Evans’ vehicle, but had walked into the side of the car as it was slowly moving backward.”

In the trial judge’s written reasons for judgment, he made the following statement:

“The defendant saw plaintiff prior to the accident, at which time plaintiff was in a position of safety with no indication that her situation would change. At that time she looked over her right shoulder to keep watch on the path she intended to follow in backing. Her only negligence would consist in not keeping plaintiff in her view or in anticipating the movements of plaintiff.
On the contrary, plaintiff’s testimony that she was already behind the car when it started backing is disproved by the testimony of the eye witness. The Court, as stated above, concludes that she was contributorily negligent by failing to observe the car start up and by walking into the side of it. By proper observation, she should have seen the car’s motion and taken evasive action.
In this situation, the Court feels that the proximate cause of the accident was plaintiff’s negligence. The parties had an equal duty of care unlike that in the Baumgartner case.
Under these circumstances, defendant is entitled to plead the contributory negligence of plaintiff. Any last clear chance to avoid the accident belonged to plaintiff.”

Plaintiff assigns as error: (1) trial court’s finding that plaintiff was contributorily negligent and (2) trial court’s decision that contributory negligence of a pedestrian did as a matter of law bar her recovery in a pedestrian-automobile collision.

Plaintiff strenuously contends that she was injured while walking behind Mrs. Evans’ car rather than when she walked into the side of it. The following controlling guidelines of appellate review contained in Canter v. Koehring Co., 283 So.2d 716 (at page 724) (La.1973) are determinative of this issue:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity tó evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

We find no manifest error in the trial court’s factual finding that the accident occurred when plaintiff walked into the side of Mrs. Evans’ moving automobile.

Plaintiff relies on the recent case of Baumgartner v. State Farm Mutual Auto Ins. Co., 356 So.2d 400 (La.1978), as authority for her contention that contributory negligence cannot bar a pedestrian from recovery when he is injured due to the negligence of the motorist.

A careful study of this case compels the conclusion that contributory negligence is no longer a defense to a pedestrian’s claim for damages sustained due to the negligence of a motorist, nor may a negligent motorist rely as a defense upon circumstances which establish that the negligent pedestrian may have had the last clear chance to avoid the accident.

The court in the Baumgartner case said: “The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Therefore, he should not be able to escape responsibility for injury to the pedestrian by pleading the latter’s negligence. And since, in such case, a plaintiff’s contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue.” p. 406

Baumgartner does not require a motorist who was guilty of no negligence that contributes to the pedestrian’s injuries to pay damages to the pedestrian merely because there occurred a motorist-pedestrian collision:

“It must be noted, however, that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.” (at page 406)

While the trial judge used the words “contributory negligence” and “last clear chance” in his reasons for judgment, a careful study of his reasons reveal that he in fact found no negligence on the part of defendant, Mrs. Evans. He points out that just prior to the time of the accident that Mrs. Evans had observed plaintiff in a position of safety with no indication that her situation would change, and at this time Mrs. Evans looked over her right shoulder to watch her backing path “her only negligence consists in not keeping plaintiff in her view or anticipating movements of plaintiff.” These findings of the trial judge are clearly supported by the record because Mrs. Evans testified that just prior to the commencement of her backing maneuver, she saw plaintiff standing near the door of the store. Mrs. Evans was required to observe the path of her backing maneuver and was not negligent in performing this all important duty rather than maintaining a constant watch to her left with her view upon plaintiff to determine if plaintiff was going to walk into the side of her automobile.

The trial judge stated further:

“In this situation the court feels that the proximate cause of the accident was plaintiff’s negligence.”

Though the trial judge used the terms “contributory negligence” and “last clear chance” we conclude from the totality of his written reasons he found that defendant was guilty of no negligence. Considering the factual findings of the trial judge, which are supported by the record, we concur in his determinations that the proximate cause of this accident was the negligence of the plaintiff.

Because Mrs. Evans was guilty of no negligence which contributed to the plaintiffs walking into the side of her slow moving car, the decision of Baumgartner does not require a decision in favor of a pedestrian under these circumstances. Plaintiff’s claim for damages was properly rejected.

For reasons assigned judgment is AFFIRMED at plaintiff’s cost.

HALL, J., dissents with written reasons.

HALL, Judge,

dissenting.

I respectfully dissent.

Considering the split second involved from the time defendant’s car started moving backwards to the time of the collision after the ear moved only two to five feet, it necessarily is a fact that plaintiff was very close to defendant’s car when it actually started moving. Defendant had a high duty of care to make sure the way was clear before she started to back up. She was negligent in failing to see plaintiff walking very close to the rear of the car on a path leading behind the stopped car.

Plaintiff was not negligent in starting to walk toward the rear of the stopped car. She was entitled to rely on the presumption that the driver would look carefully before backing up. When the car started backing up, the collision occurred almost instantaneously and plaintiff had no chance to avoid the accident.

Even if plaintiff was not entirely free of negligence, Baumgartner principles would mandate recovery. I would reverse and award damages to the plaintiff for her minor injuries.


author: FORET, Judge.

text:
    Debra WILSON, Plaintiff-Appellee, v. STATE of Louisiana, THROUGH the DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 6693.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 1, 1978.
    Writ Refused Jan. 12, 1979.

      Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellant.
    Jackson, Smith & Ford, S. Chris Smith, III, Leesville, for plaintiff-appellee.
    Rodney W. Schamerhorn, Leesville, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

Debra K. Wilson instituted this suit for personal injuries received when the pickup truck in which she was a passenger collided with a large tree lying across Louisiana Highway 28. She alleges that the accident occurred solely as a result of the negligence of the defendant, Department of Highways, in not removing or otherwise attending to this tree which, prior to falling across the highway, was leaning out over it in such a manner as to create a clear danger of its falling and thus obstructing the highway. The Department of Highways answered by way of general denial and third partied Rodney Schamerhorn, the driver of the pickup truck.

The trial court found that the accident was due solely to the negligence of the Department of Highways and awarded Debra Wilson $9,617.70 plus legal interest. The third party demand was dismissed.

The Department of Highways appeals this judgment maintaining that:

(1) it was not negligent in its conduct,
(2) that the third party defendant, the driver of the pickup truck, was negligent, and
(3) that plaintiff lacked the procedural capacity to sue for recovery of medical expenses.

Plaintiff answers the appeal urging an increase in the amount of recovery.

Rodney Schamerhorn picked up his sister, the plaintiff, Debra Wilson, at approximately 3:15 A.M. in his grandfather’s 1972 Ford pickup truck. Driving on Louisiana Highway 28 near the community of Hicks, the truck collided with a large pine tree which was lying completely across the highway. For several days prior to the accident there had been a considerable amount of bad weather in the area; on the night of the accident, it had been raining and the weather conditions were generally unfavorable.

One or two days prior to the accident, a Department of Highways crew had been sent out along the highway to clean up the trees and debris blown down by the wind and rain and to seek out any trees which might present a potential hazard and to remove those which might fall onto the highway. Testimony of a number of Department of Highways employees shows that a crew inspected this very tree one or two days prior to the accident; the crew discussed cutting down this tree, however the foreman of the crew apparently decided not to remove it. The testimony of a Mr. Douglas Gordy, an employee of the Department of Highways was as follows:

“Q. Mr. Gordy, that tree was leaning toward the road, is that right?
A. That’s right.
Q. And it was about five feet from the fence?
A. Yes sir.
Q. Was it leaning far enough that it was leaning over the fence?
A. Yes sir, it was.
Q. Okay sir. So it actually leaned over and extended out over the highway right-of-way, is that right?
A. Uh, . . .
Q. . part of it?
A. Yes sir.”
(Tr., pg. 164)

Mr. Elwood Busby, also an employee of the Department of Highways, confirmed Mr. Gordy’s testimony as follows:

“Q. Had you been there to look at this tree before the accident happened?
A. Yes sir. We went out there and we looked at it and I told them and I said, I’ll skin up that tree and tie a cable on it.”

However, the foreman, Louie Dowden, apparently decided not to cut the tree down at that time.

The Department of Highways is not an insurer nor responsible for every accident that occurs on the State highways. However, it is the duty of the Department of Highways to maintain the roads so that they will be reasonably safe for a prudent motorist. The Department of Highways is only liable for accidents occurring on the highways if the unsafe condition was (1) obviously dangerous to a reasonably careful and prudent motorist and (2) the Department had notice (actual or constructive) of the defect and had an opportunity to remedy it. United States Fidelity & Guaranty Co. v. State, Department of Highways, 339 So.2d 780 (La.1976); Laborde v. La., Dept. of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ refused; Doucet v. State, Dept. of Highways, 309 So.2d 382 (La.App. 3 Cir. 1975), writ refused; Wilkinson v. American Insurance Co. of Newark, New Jersey, 311 So.2d 584 (La.App. 3 Cir. 1975); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir. 1973); Barnes v. Liberty Mutual Insurance Co., 350 So.2d 288 (La.App. 3 Cir. 1977), writ refused.

It is obvious that a highway with a large pine tree completely across it is not “reasonably safe” for the motoring public. As shown by the facts of this accident, the pine tree was a sufficiently dangerous defect so as to cause the accident, and the Department had notice, according to the testimony of its own employees, of the potential danger posed by this large pine tree leaning over the highway right-of-way. Its crew, a day or so before the accident, was in the area cutting down other trees. The Department had reasonable time to remedy the situation by cutting down or otherwise restraining this tree.

In aid of its defense, the Department of Highways notes the recent Second Circuit case of Adams v. La., Department of Highways, 357 So.2d 1239 (La.App. 2 Cir. 1978) wherein the Department was held liable in damages to a landowner for cutting down a “landmark” pecan tree located on private property.

“A public body may not destroy private property overhanging a public right of way without observing legal process unless the property constitutes a public nuisance or poses imminent danger to users of the right of way. Oglesby v. Town of Winnfield, 27 So.2d 137 (La.App. 2d Cir. 1946); Tissot v. Great Southern Telephone & Telegraph Co., 39 La.Ann. 996, 3 So. 261 (1887). See also annotation at 64 A.L.R.2d 870. There is no evidence that The Statue-of-Liberty tree was a public nuisance or that it posed imminent danger to the highway users. (Emphasis provided.)

The testimony in the present case tends to show that the tree in question was in fact located on private property behind a fence; however, it is clear that the tree did pose an imminent danger to users of the highway as evidenced by the fact that it fell within days of being inspected by the Department of Highways. The Department of Highways clearly owed a duty to the motoring public to remove or restrain this tree.

We quote from 14 A.L.R.2d 203:

“While there is some authority not in full accord, the majority of the cases considering the question have taken the view that a state or municipality cannot avoid liability for damages caused by the fall of a tree, or limb of a tree, by showing that it stood on private property abutting the highway, rather than on the highway itself, where the tree or limb fell into the highway, and its condition had been such as to put the authorities on notice that it endangered those passing along the highway.”

The employees of the Highway Department made no attempt to contact Mr. Jeter, the owner of the land on which the tree was located, to tell him that the tree posed a definite danger of falling across the highway and to ask his permission to remove the tree. Had the Department done so, and had been refused permission by Mr. Jeter, their position in this matter would be somewhat more tenable. In our view, their failure to even seek permission from Mr. Jeter to remove the tree weakens the State’s position considerably.

In our opinion, the duty of the Department of Highways to maintain its highways in a reasonably safe condition for the safety of the traveling public is so great that where a situation of imminent danger is posed to the users of the highway because of a tree or other hazardous instrumentality situated on private property along the highway right-of-way, the Department cannot sit back and ignore the dangers posed because the danger-causing object is situated on private property. At worst, in this case, had the State cut the tree down without the landowner’s permission, it could have subjected itself to a matter of a few hundred dollars in damages, such as occurred in the case of Adams v. State, supra. On the other side of the coin, to save a possible few hundred dollars in damages, the Department having actual knowledge of the danger posed by the tree, sitting back and doing nothing, exposing unsuspecting members of the traveling public to great bodily injury or death, seems to us to be an anomalous situation, which we cannot sanction.

As to the Department's third party claim against the driver of the pickup truck, Rodney Schamerhorn, we agree with the conclusion of the trial court in finding no negligence on his part. Testimony by both Schamerhorn and the plaintiff was to the effect that he was driving at a reasonable rate of speed under the conditions (40 to 50 miles per hour) with his headlights on low beam as this was more effective under the rainy and hazy conditions then existing. When confronted with this unexpected obstacle across his path, a collision was unavoidable.

QUANTUM

Plaintiff has answered the appeal seeking an increase in quantum from $9,617.70 to $15,000. The record reveals that the plaintiff’s injuries included a cervical sprain, upper or mid-back strain or sprain, and lumbar sprain or strain, together with worry and anxiety over the possible effects of the accident on her pregnancy and unborn child.

We find no manifest error in the judgment of the trial court, except as held here-inbelow.

Defendant, Department of Highways, alleges that plaintiff, Debra K. Wilson, is not the proper party to sue for recovery of medical expenses incurred as a result of this accident. At the time of this accident, Debra Wilson was married to and living with her husband, Russell Wilson. The medical expenses incurred were billed to him. However, at the time of this trial, she was legally divorced from him and remarried. Her petition alleges that she is a “femme sole” and her brief to this Court states that at the time of filing of this suit she was legally separated from her husband. This is contradicted by her own testimony at trial.

“Q. And at the time that you actually filed suit in this accident, were you living separate and apart from him?
A. No, I was living with him.”
(Tr., pg. 168)

In any case, the obligation was incurred during the existence of the community between Debra and Russell Wilson. As such, it is a community debt and the husband, as the head and master of the community, is the proper party to sue to recover such expenses. There is no evidence of any separation agreement by which she agreed to be bound for these medical expenses; it is her right to reject all community assets and debts upon dissolution of the marriage. Counsel for defendant, Department of Highways, timely objected at trial to her procedural capacity to sue and recover for such expenses. This Court reverses the decision of the trial court and holds plaintiff, Debra Wilson, is not the proper party to sue to recover such expenses and that the timely objection of defendant, Department of Highways, should have been sustained. Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3 Cir. 1977), writ refused. In all other respects, the amount of damages awarded by the trial court is within the bounds of its much discretion.

Accordingly, the judgment of the trial court is amended to reduce the award by the amount of medical expenses awarded, $617.70, and as amended, affirmed.

Defendant-appellant, Department of Highways is to pay all costs of these proceedings, which can be taxed against the State under existing law.

AMENDED AND AFFIRMED.


author: REDMANN, Judge. SAMUEL, Judge, STOULIG, Judge, BEER, Judge,

text:
    Godfred J. SCHEXNAYDER v. Sheila Granier SCHEXNAYDER.
    No. 9224.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Writ Granted Dec. 14, 1978.
    G. Walton Caire, Edgard, for plaintiff.
    Harold J. Sonnier, Tauzin & Sonnier, Thi-bodaux, for defendant.
    Before SAMUEL, REDMANN, GULOT-TA, STOULIG and BEER, JJ.
   REDMANN, Judge.

On an ex-husband’s appeal, we affirm the award of custody of his two young children to his ex-wife, despite her admitted adultery approximately ten times with the same man over a two-month period.

“The determination of the trial judge in child custody matters is entitled to great weight” and “[h]is discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof.” Fulco v. Fulco, 1971, 259 La. 1122, 1130, 254 So.2d 603, 605.

Few of us are ideal parents. In respect to her adultery, Mrs. Schexnayder is not a worse offender than Mrs. Fulco was. The trial judge’s difficult decision was articulately explained and, within the Fulco principle, ought not be disturbed.

We join in the trial judge’s observation that any grant of custody is subject to change in the event the conduct of the parent with custody warrants a change.

Affirmed.

SAMUEL, C. J., and STOULIG, J., dissent and file opinions.

BEER, J., concurs in the judgment and files opinion.

SAMUEL, Judge,

dissenting.

At issue is the custody of two minor children, age 4V2 and 3V2 years at the time of trial. The father had filed a suit for separation from bed and board. By supplemental petition, he later sought a divorce on the ground of adultery. Following the hearing of a custody rule he was granted the temporary custody of the children during the pendency of the suit. After the divorce judgment had been granted and following another hearing on the question of custody, the trial court granted custody to the mother. The father has appealed from the judgment awarding custody.

In primis, it should be pointed out that in this matter custody is not controlled by C.C. art. 146, which is concerned with the custody of children while the litigation is pending and which custody is referred to in that article as “provisional.” Custody here is controlled by C.C. art. 157, prior to its amendment by Act 448 of 1977, which is concerned with custody following separation or divorce and which, in pertinent part, reads:

“In all cases of separation and of divorce the children shall be placed under the care of the party who shall have obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party. * * *”

Despite the above wording of Article 157, the Supreme Court of Louisiana has established the jurisprudential rule that in all cases of custody of children, regardless of which parent has obtained the separation or divorce, the mother is to be preferred unless she is shown to be morally or otherwise unfit, thus placing on the father the burden of proving unfitness of the mother. This court is required to follow that rule. However, either under the literal wording of the article or under the rule, I am of the firm opinion that custody in this case should be given to the father.

It is necessary to set out the facts in more detail than the majority opinion does. As established by the record, the pertinent facts are:

The litigants lived next door to the husband’s parents. He frequently worked at night. On many of those occasions, telling her in-laws she was going to play bingo, the wife sent the pajama-clad children to the paternal grandparents to be fed, put to bed, and taken care of the next morning. However, instead of playing bingo, the wife was meeting her paramour, a man of another race (the litigants are white and the paramour is black), at a motel in a nearby town and in other public places. The affair soon became common knowledge and the subject of much gossip in the small community where the parties resided.

At the time of trial the wife was 23 years of age. She stopped going to school when she was in the eighth grade. Her parents had permitted this because she was failing “everything” and her mother thought she might as well stay home and help with the other children in their large family. When the wife’s parents heard she was “messing around”, they confronted their daughter who tearfully admitted her indiscretions. But she refused to promise she would discontinue seeing her lover, stating only that she would “try”.

It is clear that whichever parent is awarded custody, the children will live in the home of one set of grandparents. Both sets of grandparents expressed a willingness and desire to care for the children as long as necessary. They each have three bedroom homes, in nice neighborhoods where there are other children. The maternal grandparents have the children’s mother and three of their other children in their home. With the addition of these two young children there would be eight people in the household, although one of the older daughters intended to be married in the fall and presumably would be establishing her own home. All of the children of the paternal grandparents are married and living elsewhere. Thus, the paternal grandparents would have no others to look after, and these children would have a room of their own.

Although the trial court found the wife had not seen her paramour since January 1, 1977, it is clear she attempted to reactivate the affair thereafter. On three different days during the weekend of January 7, 1977, she telephoned her lover at his home leaving her name and number with that man’s daughter and a message requesting that he return her phone calls. These calls caused the paramour’s wife to see the defendant and her parents at the latters’ home. According to the defendant-wife she had committed adultery on more than five but less than ten occasions between September, 1976 and January 1, 1977. She claimed not to have seen her lover since that date.

It should be emphasized that the record contains no evidence even suggesting that the father is in any way unfit for custody.

It is an established rule that one or more isolated cases of adultery do not suffice to deprive the mother of her right to custody of children of the marriage. However, here the instances of adultery are not isolated. The mother’s behavior was flagrant, even open and notorious. In addition to meeting her lover at a motel, she met him behind a church in Vacherie, Louisiana, at a bar, behind the school house, on the levee, or on a little traveled road in the area. Her conduct was openly observed and, as has been mentioned, caused scandal and gossip in the community to such an extent that the affair soon became common knowledge. She was not only observed at night but during the day.

I am unimpressed with the wife’s testimony that she “thinks” she committed adultery less than ten times. The trial judge found “approximately” ten times. My reading of the record indicates many more times than that. In addition, I am unfavorably impressed with her refusal to promise to stop seeing her lover. Although the trial judge believed she had not seen the man since January 1, 1977, it is quite clear her attempts to contact him at his home on several occasions thereafter shows she was trying to continue the affair.

I adhere to the rule that a mother is unfit to be awarded the custody of the children when it is shown she consistently has engaged in a course of open and public indiscretions in defiance and disregard of generally accepted moral principles. In such instances, custody should be awarded to the father or to the other party lawfully entitled thereto.

To reiterate, while the record is replete with evidence of the unreliable character and unfitness of the mother, there is no evidence of any kind detrimental to the father. On the contrary, the children appear to have been well fed, clothed and otherwise entirely properly cared for while in his custody.

In my view, the trial court properly recognized that the mother’s conduct “was particularly scandalous and offensive to the sensibilities of the local community in that her lover was of another race”. The inevitable result of that conduct is the disregard in which the children would be held by other persons in the community, particularly other children. The mother’s conduct shows a lack of love and consideration for her children. Further, it appears to me that the trial judge was overly concerned about the fact that we no longer have any laws against miscegenation. The issue here is not the civil rights of the defendant’s paramour. At issue is the effect on the children of the mother’s open and notorious conduct.

The Supreme Court case of Fulco v. Fulco, relied on by the majority, does not support an affirmance. Fulco is an extreme case and should not be extended. In addition, Fulco is distinguishable in several respects. Unlike Fulco : (1) here a reversal would not result in a change of custody (in Fulco the mother had custody and the father sought a change of custody to himself, while the trial court judgment in this case changed the custody from the father to the mother); (2) the mother’s conduct in Fulco was far from the public and notorious conduct of the mother in this case; (3) the court in Fulco was fully satisfied that the mother’s affair was finished and would not be resumed, whereas in this case no such conclusion, indeed the opposite conclusion, can be drawn; and (4) in this case the repercussions of the affair relative to the mother’s paramour, who was of another race, is totally absent in Fulco.

As I am of the opinion the mother in this case is morally unfit and that it is clearly in the best interest of the children that they be continued in the custody of their father, and as I would reverse the judgment appealed from,

I respectfully dissent.

STOULIG, Judge,

dissenting.

I respectfully dissent for the reasons assigned in the dissenting opinion of SAMUEL, J.

BEER, Judge,

concurring.

Appellant makes a strong case. Yet, I feel compelled to maintain allegiance to the proposition that an able trial judge, who has the manifest advantage of measuring the demeanor of the key witnesses during the trial court confrontations, as well as the manifest ability (here, perhaps, most important of all) to sort out the local and overall impact of his custody decree upon the minors, must be accorded the widest possible discretion.

      . At issue before the court is the custody of two minor children, five and six years of age respectively.
      While in determining custody the welfare of the children is the paramount consideration, the very strong maternal preference rule repeatedly recognized in this state compels an award of very young children to the mother unless she is shown to be unfit.
      Here the husband obtained a divorce from the mother on the ground of adultery. The mother freely admitted an affair lasting from the end of September, 1976 to January 1, 1977, during which she met another man approximately once a week and with whom she admitted having intercourse approximately ten times. She denies having any contact with him since January 1, 1977, and there is no proof of any misconduct on her part since that date. No impropriety was shown to have been committed in the presence of the children.
      The question is, is this sufficient to deprive the mother of custody? The clear answer under the jurisprudence is no. Numerous cases have repeatedly held that a brief affair or isolated instances of adultery not shown to have been conducted in the presence of the children are insufficient to deny custody to a mother who is otherwise suitable.
      However the mother’s conduct here was particularly scandalous and offensive to the sensibilities of the local community in that her lover was of another race. The court has for this reason long delayed its decision. Our laws against miscegenation have been ruled unconstitutional and insofar as the law is concerned the question of race is irrelevant. Accordingly the court is reluctantly compelled to the conclusion that the maternal preference rule requires an award of custody to the mother. However the court will make such custody provisional and subject to the mother’s continued good conduct.

      . In this case the trial court awarded “provisional” custody to the mother subject to her “continued good conduct”. But for all practical purposes, here there is no difference between the award appealed from and an award of permanent custody as an award of permanent custody can be changed at any time on a proper showing justifying a need for a change.

      . Act 448 of 1977 was not effective at the time of trial.

      . Child Custody: Preference to the Mother, 34 La.L.Rev. 881; The Father’s Right to Child Custody in Interparental Disputes, 49 Tul.L.Rev. 189.

      . Lambert v. Lambert, La.App., 286 So.2d 390; McManus v. McManus, La.App., 250 So.2d 498; Phillips v. Phillips, La.App., 244 So.2d 652.

      . Johnson v. Johnson, La.App., 268 So.2d 114; Strother v. Strother, La.App., 248 So.2d 867.

      . 259 La. 1122, 254 So.2d 603.