author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Alejandro MENA et al.
    No. 57653.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Dissenting Opinion April 6, 1977.
    Daniel J. Caruso, Alford & Caruso, New Orleans, for defendants-respondents.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., George S. Ingalls, Jr., Asst. Dist. Atty.,' for plaintiff-relator.
   MARCUS, Justice.

Alejandro G. Mena, Jose G. Mena, and Gustave S. Mena were charged by bill of information with possession with intent to distribute marijuana. La.R.S. 40:966(AX1); La.R.S. 40:964(C)(10). Defendants filed a motion to suppress the marijuana seized, which the trial judge, following a hearing on the motion, sustained. We granted the state’s application for certiorari.

On June 17, 1975, Detective Emmett Du-pas of the New Orleans Police Department executed a sworn application for a warrant to search the residence of defendant Jose Mena. His affidavit recites in pertinent part as follows:

THE reasons and facts for the request of this search warrant are:
On 6-17-75 at about 4:17 AM Dets. Brian Girod and Anthony Kirsch of the St. Bernard PD arrested one Jimmy B. Samson with the possession of one pound of Marijuana. After being advised of his rights Samson showed the Dets. from St. Bernard the house that he bought the Marijuana from at 5:00 AM and at this time pointed out the doorway of 4302 S. Car-rolton (sic) and stated that the subject by the name of Jose had sold the marijuana for the sum of $130.00. Det. Dupas checked and learned that a subject by the name of Jose Mena resided at this address NOPD B of I # 179-187. Jimmy Samson was shown this photo and he stated that this was the same subject that he purchased the marijuana from and also that at the time he bought the marijuana he observed numerous other packages similar to the one that he purchased containing marijuana in the house.

A search warrant issued on June 17, 1975 for the search of Jose Mena’s residence. Detective Dupas executed the warrant the same day and seized twenty-three pounds of marijuana pursuant to his search of the premises.

The principal ground of defendants’ motion to suppress the marijuana seized as a result of this search is that Detective Du-pas’ affidavit failed to make a showing that his informant was reliable, and, thus, did not establish probable cause for issuance of a search warrant.

A search warrant may issue only upon probable cause, established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. La. Code Crim.P. art. 162. See also U.S. amend. 4; La.Const. art. I, § 5 (1974). In State v. Paciera, 290 So.2d 681, 685 (La.1974), we stated the rule as follows:

. 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 creditability 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.

Accord, State v. Martin, 318 So.2d 25 (La.1975).

In our opinion, the facts recited in the affidavit clearly provide an adequate basis upon which the issuing magistrate could conclude that the informant was credible and his information reliable. The reliability of the information reported is sufficiently established by the informant’s direct personal observation and actual participation in the sale of marijuana. As the affidavit discloses, the informant, Jimmy Samson, had been arrested for possession of marijuana. He told officers that a person named “Jose” had sold him the marijuana and lived at a specified address. The credibility of the informant is established by two factors. First, the informant’s report that Jose lived at the specified address was corroborated by the affiant’s independent investigation. Second, the informant’s admissions, included in the affidavit, that he purchased marijuana from defendant Jose Mena, as well as his photographic identification of Jose Mena, constituted declarations against penal interest because they supplied evidence against him of guilty knowledge, an essential element of the crime of the possession of a controlled dangerous substance. State v. Knight, 298 So.2d 726 (La.1974) and cases cited therein. In United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971), the United States Supreme Court stated that declarations against penal interest provide a strong reason for crediting an informant’s tip:

People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at ¡east to support a finding of probable cause to search.

(Emphasis added.)

We find no merit in defendants’ contention that the affidavit did not establish the informant’s credibility because it did not make a showing that he had supplied accurate criminal reports in the past. A prior record of accurate criminal reports is an important factor in establishing the credibility of an unidentified informant. State v. Paciera, supra. However, common sense, which must guide magistrates and courts in testing search warrants, suggests that the importance of this factor is necessarily diminished where, as here, the informant is named in the affidavit. We think the facts recited in the affidavit indicate the informant’s credibility just as strongly as would any allegations in the affidavit that the informant had previously given correct reports of criminal activity.

Accordingly, we conclude that the trial judge erred in sustaining the motion to suppress the evidence.

DECREE

For the reasons assigned, the ruling of the trial judge sustained the motion to suppress the evidence is reversed, and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

The heavy responsibility of a criminal appellate court to declare a search warrant invalid despite the fact that evidence of a crime was obtained in a search conducted under the warrant is widely misunderstood. Nevertheless, the constitutions of our nation and state impose this duty upon the judiciary if the warrant never should have been issued because the affidavit presented to the magistrate failed to disclose probable cause for a search. United States Constitution, Amendment IV; Louisiana Constitution Article I, § 5 (1974). Otherwise, the requirement that no warrant shall issue without probable cause supported by oath or affirmation would have little meaning and no effect in protecting citizens against unreasonable searches, seizures or invasions of privacy.

Therefore, it is clear that we should not have affirmed the conviction in this case if the evidence upon which it was based was obtained through an affidavit which failed to establish probable cause. An affidavit which does not reflect the direct personal observations of the affiant must inform the issuing magistrate of some of the underlying circumstances from which the informant concluded that the evidence was where he claimed it was, and some of the underlying circumstances from which the officer concluded that the informant was “credible" or his information “reliable.” Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The affidavit in the instant case set forth adequate circumstances from which the issuing magistrate could have concluded the informant had been in a position to observe the evidence at the place where he said it was located. However, in my opinion, it did not give the magistrate any underlying circumstances from which the officer could have reasonably concluded the informant was “credible” or his information “reliable.”

The linch-pin in the majority’s finding that the informant’s story was reliable was his declaration against penal interest contained therein. However, I do not think that this factor can legitimately be considered an indicia of reliability in this case, and without it the other facts do not provide a reasonable basis for the majority’s conclusion.

Jimmy Samson, the informant, was placed under arrest, having in his possession one pound of marijuana. He told the arresting officers “Jose” sold it to him, and pointed out Jose’s residence to them. He also identified a photograph of Jose. The fact that independent police investigation revealed that Jose Mena lived at the residence does not, in my view, lend credibility to Samson’s assertion that Jose sold him the marijuana. All it really shows is that Samson knew that a person named Jose lived at that particular residence. That Samson could identify a photograph of Jose Mena likewise shows only that he knew that Mena looked like. Samson could just as easily have given the officers the name and address of any person known by him to be living at a particular address.

I doubt that Samson understood his statement to be against his penal interest. If Samson was aware that the State could use his statement to prove his guilty knowledge in a prosecution for possession of marijuana it was a detail he in all likelihood considered insignificant under the circumstances. He had been caught red handed, and reason suggests Samson’s statement to the officers that Jose sold him the marijuana was given in an attempt to gain favorable treatment.

The fact that the United States Supreme Court, in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), validated a warrant issued on the basis of an affidavit relating an informant’s declaration against penal interest does not mean that every technical declaration against penal interest supports the credibility of an informant. The majority opinion in Harris expressly recognizes this fact in language following the language quoted by the majority opinion in this case. The Supreme Court cautioned, “* * * [cjoncededly, admissions of crime do not always lend credibility to contemporaneous or later accusations of another. * * *” 403 U.S. at 584, 91 S.Ct. at 2082, 29 L.Ed.2d at 734. Further illuminating are observations made by Mr. Justice Harlan in his dissenting opinion in Harris, an opinion in which three other justices joined:

“* * * [Wjhere the declarant is also a police informant it seems at least as plausible to assume, without further enlightenment either as to the Government’s general practice or as to the particular facts of this case, that the declar-ant-confidant at least believed he would receive absolution from prosecution for his confessed crime in return for his statement. (This, of course, would not be an objection where the declarant is not also the informant. See Spinelli v. United States, supra, 393 U.S. 410 at 425, 89 S.Ct. 584 at 593-594, 21 L.Ed.2d 637 (White, J., concurring).) Thus, some showing that the informant did not possess illusions of immunity might well be essential.” 403 U.S. at 595, 91 S.Ct. at 2087, 29 L.Ed.2d at 740.

I do not find the affidavit sufficient to justify the conclusion that the informant was credible or his information reliable; the search warrant was issued without cause supported by oath or affirmation.

For the reasons assigned, I respectfully dissent.

      . United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).


source: Caselaw Access Project

author: MARCUS, Justice. DENNIS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Byron de la BECKWITH.
    No. 58586.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 22, 1977.

      Travis Buckley, Laurel, Arthur A. Lem-ann, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Byron de la Beckwith was charged by bill of information with the crime of knowingly transporting, carrying and conveying dynamite within the boundaries of this state without a license or permit in violation of La.R.S. 40:1471.8. After trial by jury, he was found guilty as charged. Subsequently, he was sentenced to serve five years in the custody of the Department of Corrections. On appeal, he relies upon sixteen assignments of error for reversal of his conviction and sentence. We will consider these assigned errors in the order in which they appear in the record.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in overruling his motion to quash on the ground that La.R.S. 40:1471.18 is unconstitutional.

La.R.S. 40:1471.1-1471.22 is a comprehensive statute regulating explosives. La.R.S. 40:1471.8, which defendant was charged with having violated, provides that it shall be unlawful for any person to transport any explosives into this state or within the boundaries of this state without a license or permit. La.R.S. 40:1471.18, which establishes the penalty for that offense, states:

Any person who manufactures, purchases, keeps, stores, possesses, distributes, or uses any explosive with the intent to harm life, limb or property, shall, upon conviction, be guilty of a felony and liable to a fine of not less than five thousand dollars nor more than ten thousand dollars or imprisonment in the state prison not less than five years nor more than ten years, or both. Any person who shall in an application for a license or permit as herein provided, knowingly make a false statement, or who shall obtain explosives under a false statement, pretense or identification, or who shall knowingly otherwise violate any provisions of this Part, or regulation promulgated pursuant to this Part, shall, upon conviction, be guilty of a felony and liable to a fine of not less than two hundred fifty dollars nor more than one thousand dollars or imprisonment in the state prison not less than one year nor more than five years, or both. Possession of explosives under circumstances contrary to the provisions of this Part or such regulations shall be prima facie evidence of an intent to use the same for destruction of life, limb or property. Conviction under this section of any person holding a license or permit shall effect cancellation thereof.

Defendant urges that La.R.S. 40:1471.18 is unconstitutional because it states that possession of explosives in violation of La. R.S. 40:1471.1-1471.22 constitutes prima fa-cie evidence of an intent to use the explosives for destruction of life, limb, or property. He contends that a person may possess explosives for several other reasons other than for the intentional destruction of life, limb or property and, accordingly, that the correlation between illegal possession and possession with intent to destroy life, limb or property is irrational.

We find it unnecessary to pass upon defendant’s contention because defendant was not charged with possession of explosives with intent to harm life, limb or property. The bill of information charged defendant with knowingly transporting explosives without a license or permit in violation of La.R.S. 40:1471.8. Possession of explosives with the intent to harm life, limb or property is in violation of La.R.S. 40:1471.18 and carries a heavier penalty.

While La.R.S. 40:1471.18 also establishes the penalty for violation of La.R.S. 40:1471.8 (as well as other violations of La. R.S. 40:1471.1-1471.22 and the regulations promulgated thereto), it is clear that possession of explosives with intent to harm life, limb or property and knowingly transporting explosives without a license or permit are two separate and distinct offenses. Further, our review of the record convinces us that the question of defendant’s intent to harm life, limb or property and the rule that his unlawful possession of explosives would be prima facie evidence of such intent, was carefully kept from the jury’s consideration. At a hearing held on December 6, 1974, the trial judge emphasized to the prosecutor and defense counsel that defendant was not charged with possession with intent to harm life, limb or property, that any testimony relative to such intent would result in a mistrial, and that if the state made any comments dealing with intent to harm life, limb or property these comments would be stricken. A review of the state’s opening statement indicates its intention not to offer any evidence regarding such intent. Finally, the trial judge admonished the jury, during the state’s closing argument, that since defendant was charged with knowingly transporting explosives into the state without a license and not with possessing explosives with intent to harm life, limb or property, it should disregard all comments regarding such intent.

The trial judge properly overruled defendant’s motion to quash on the ground that La.R.S. 40:1471.18 is unconstitutional. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

Defendant filed a motion to quash the information on the grounds of double jeopardy and collateral estoppel, asserting that he had been acquitted in federal court on January 21, 1974 on essentially the same charges for which he was being prosecuted by the state. The trial judge denied the motion to quash, ruling that defendant’s acquittal in the federal charges did not bar his prosecution for violation of state law. Defendant assigns this ruling as error.

The trial judge’s ruling was correct. The prosecution by the state did not place defendant twice in jeopardy for the same offense as proscribed by the federal and Louisiana constitutions. U.S.Const. amend. 5; La.Const. art. 1, § 15 (1974). In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), the accused was tried and convicted of robbery of a federally-insured bank in the state court after he had been acquitted on federal charges for the same offense. The United States Supreme Court held that the subsequent trial of defendant in state court did not deprive him of due process of law under the fourteenth amendment to the United States Constitution. Likewise, in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Court held that a federal prosecution on the same charge on which the accused had been convicted in state court did not place the defendant twice in jeopardy for the same offense under the fifth amendment. Together, these cases “teach that successive prosecutions by different sovereignties do not violate the double jeopardy clause of the Fifth Amendment and are therefore constitutionally permissible.” United States v. Jones, 174 U.S.App.D.C. 34, 527 F.2d 817 (1975).

In Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), the Supreme Court held that the state and a municipality were not separate sovereignties. Accordingly, because the accused had been convicted in municipal court for violation of a city ordinance, a second trial in state court for the same acts (which also violated state law) constituted double jeopardy. Bartkus and Abbate were distinguished, but not overruled in Waller, and there is no question as to their continuing validity. The holdings in Bartkus and Abbate are codified in our Code of Criminal Procedure, which specifically provides that double jeopardy does not apply to a prosecution under a law enacted by the Louisiana legislature if the prior jeopardy was in a prosecution under the laws of another state or the United States. La.Code Crim.P. art. 597, as amended, La. Acts 1972, No. 648, § 1. Therefore, defendant’s plea of former jeopardy is without merit.

Nor is the state prosecution barred by collateral estoppel. The doctrine of collateral estoppel “means simply that when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit” (emphasis added) and is embodied in the fifth amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Since the first prosecution was in federal court, identity of parties, an essential requirement of collateral estoppel, is lacking. Cf. State v. Hill, 340 So.2d 309 (La.1976). This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

Three days before the trial was scheduled to begin, defendant filed a motion for change of venue. In the motion, he alleged that on account of the publicity attending his arrest and pending trial there existed such public prejudice against him that a fair and impartial trial could not be obtained in Orleans Parish.

At the hearing on the motion for change of venue held on May 15, 1975, the day of the trial, defendant produced in support thereof an article concerning the case in the previous day’s edition of the New Orleans States-Item. He also argued that local radio and television stations had broadcast stories about the trial the night before, and the trial judge issued a subpoena to all news media asking them to transcribe the broadcasts relative to the trial of the case. The defendant offered no other evidence in support of his motion. The trial judge, rather than rule on the motion for change of venue immediately, then conducted, with defendant’s acquiescence, a preliminary, or “dry run,” voir dire examination of fifteen prospective jurors. He proceeded to question them concerning their knowledge of the case through pretrial publicity for the purpose of determining whether a change of venue was warranted. Of the fifteen prospective jurors, only one stated that she had read the States-Item article the night before. Four other prospective jurors evidenced a slight knowledge of the case through pretrial news coverage, and the remaining ten answered that they had never heard or read about defendant until they were summoned as prospective jurors. At the conclusion of this “dry run” voir dire examination, the trial judge denied the motion for change of venue. Defendant assigns his ruling as error.

The grounds for change of venue are set forth in article 622 of the Code of Criminal Procedure as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

To warrant a change of venue, the burden is upon the accused to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. Article 622 requires a showing of more than mere knowledge by the public of facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Richmond, 284 So.2d 317 (La.1973).

The granting or denial of a motion for change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Berry, supra; State v. Dillard, supra.

Under the evidence presented to support the motion for change of venue, we cannot say that the trial judge abused his discretion. At the hearing on the motion, defendant produced only one news article, the States-Item account published the day before the trial, as evidence of pretrial publicity. Although he argued at the hearing on the motion for change of venue that there was other news coverage of the case, he offered no other evidence in support of his motion and relied solely on the existence of publicity. Of importance, too, is the fact that defendant was arrested in September, 1973, more than thirty months prior to the trial. Finally, the prospective jurors whom the trial judge questioned during the “dry run” voir dire examination displayed, as a whole, either little or no familiarity with the case. Hence, the trial judge reasonably concluded that defendant had not satisfied his burden of proving that a fair and impartial trial could not be obtained in the parish.

In his brief, defendant also asserts that the procedure used by the trial judge to determine whether a change of venue was justified denied him the right to show that pretrial publicity had prejudicially influenced the jury.

This contention is without substance. In State v. Bell, 315 So.2d 307 (La.1975), we held that the trial judge therein committed reversible error by his refusal to issue defendants’ requested subpoenas of news representatives and other witnesses or permit the introduction of evidence of the extensive publicity. In contrast to Bell, the trial judge in this case permitted the introduction in evidence of pretrial publicity and even sua sponte issued subpoenas for the transcription of news broadcasts. The record does not show that defendant sought to introduce other evidence in support of his motion but was prevented from doing so by the trial judge. Further, in Bell the “dry run” voir dire failed to elicit testimony concerning the extent and nature of publicity or the community’s attitude toward the defendants and consisted exclusively of questions directed at the prospective jurors’ ability to render a fair and impartial verdict. We held in Bell that such questioning was unsatisfactory because, under the concept of change of venue in Code of Criminal Procedure article 622, a defendant may be entitled to a change of venue even though it would be possible to select a jury whose members are not subject to a challenge for cause. See also State v. Berry, supra. Here, however, the trial judge questioned the prospective jurors extensively concerning their awareness of the extent and nature of pretrial publicity and endeavored to ascertain the attitude of the community toward the defendant.

We conclude, therefore, that defendant was not deprived of any right or opportunity to show that a fair and impartial jury could not be obtained in Orleans Parish. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 4

The bill of information originally filed charged defendant with “wilfully and unlawfully” transporting an explosive substance, dynamite, within the boundaries of the state. On the day of the trial, but prior to the voir dire examination, the state moved to amend the bill of information by the insertion of the words “and knowingly” so that the bill of information would read as follows:

Byron de la Beckwith . . . did wil-fully and unlawfully and knowingly transport, carry and convey, within the boundaries of this State, an explosive substance, to wit: dynamite, without benefit of license or permit as required by law. (Emphasis added.)

Defendant objected to the amendment, and the trial judge overruled his objection. Defendant assigns his ruling as error.

The amendment merely conformed the bill of information to the penalty provision, contained in La.R.S. 14:4071.18, of the crime charged. La.R.S. 14:4071.18 states that the penalty is imposed upon persons who “knowingly” violate any provision of La.R.S. 40:1471.1-1471.22.

An indictment may be amended with respect to a defect of form or substance before the trial begins. La.Code Crim.P. art. 487 (1966). In a jury trial, the trial commences when the first prospective juror is called for examination. La.Code Crim.P. art. 761 (1966). As we previously stated, the instant information was amended before commencement of the voir dire examination. Therefore, whether the defect be considered one of form or of substance, amendment of the bill of information with respect to such defect was properly allowed. State v. Hubbard, 279 So.2d 177 (La.1973); State v. Royal, 255 La. 617, 232 So.2d 292 (1970). Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a thirty days’ continuance filed after the trial judge permitted the state to amend the bill of information by insertion of the words “and knowingly.”

Under article 489 of the Code of Criminal Procedure, the court shall grant a continuance on motion of the defendant if the defendant has been prejudiced in his defense on the merits by the amendment of the indictment. It is incumbent upon the defendant to show in what respect his defense has been prejudiced by amendment of the indictment. State v. Brown, 338 So.2d 686 (La.1976); State v. Gibson, 322 So.2d 143 (La.1975); State v. Hubbard, 279 So.2d 177 (La.1973).

In the motion for a continuance, defendant argued that addition of the words “and knowingly” changed the character of his defense, and that he would need additional time to produce a witness who would testify that he did not knowingly commit the crime charged. As the trial judge states in his per curiam to this assignment of error, however, it is extremely doubtful that defendant had been unaware that lack of knowledge was a defense to the charge. La.R.S. 40:1471.18 plainly states the penalty for conviction of the crime charged (La.R.S. 40:1471.8) is imposed upon a person who shall “knowingly . violate” (emphasis added) any provision of La.R.S. 40:1471.1-1471.22. Like the trial judge, we cannot believe that defendant was ignorant of La.R.S. 40:1471.18 especially in light of the fact that he had previously filed a motion to quash in which he stated that the bill of information charging that he “did wilfully and unlawfully” commit the offense charged was fatally defective because not in the language of the statute.

The purpose of the continuance when an amendment to the indictment is made is to protect the defendant against surprise and prejudice which might result from such an amendment. La.Code Crim.P. art. 489, Official Revision. Comment (a). We find that defendant was not surprised, nor his defense prejudiced, by the amendment. Accordingly, the trial judge did not err in denying the motion for a continuance. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7

In this assignment of error, defendant contends that the trial judge erred in denying his motion for production of the prior voting records of prospective jurors.

Defendant alleges that the Office of the District Attorney in Orleans Parish prepares a compilation of the voting records of prospective jurors in previous trials. Defendant contends in his brief that through exclusive possession of the compilatiori of voting records, the state is able systematically to exclude lenient jurors from petit jurys, in violation of defendant’s rights under the sixth and fourteenth amendments to the United States Constitution. On the other hand, the state contends that the voting records of prospective jurors are a part of its work file and therefore not subject to defendant’s inspection.

We need not reach the question of whether or not the district attorney’s compilation of the voting records of prospective jurors in previous trials is part of his work file and therefore privileged as the record before us is insufficient to show that the trial judge abused his discretion in denying defendant’s motion. There is no evidence in the record that the state ever intended or did use the voting records of the prospective jurors in this case. Nor is there any evidence in the record showing that such information was not available to defendant through independent means. Moreover, defendant’s motion for production of the voting records was made orally immediately prior to the voir dire examination and was, in our view, tardy. Because of the lack of showing in the record, and in view of the circumstances in which the motion was made, we cannot say that the trial judge abused his discretion in denying defendant’s motion for production of the state’s compilation of prospective jurors’ voting records. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 8

Defendant alleges that the trial judge erred in denying his motion to suppress and in overruling his objections to the introduction in evidence of various items of evidence seized from his person and from his automobile. His motion to suppress was grounded on the allegation that the war-rantless searches of his person and vehicle violated his rights under the federal and state constitutions. U.S.Const. Amend. 4; La.Const. art. 1, § 5 (1974).

At the suppression hearing held on November 15, 1974, Agent Thompson Webb of the Federal Bureau of Investigation in Jackson, Mississippi, testified that he had received information from a reliable confidential informant that defendant was coming to New Orleans on or about September 27, 1973 for the purpose of either bombing the residence of or shooting a New Orleans civic leader. He testified that he relayed this information to Agent George Carter, a special agent with the F.B.I. in New Orleans. Agent Carter in turn reported the information to Sgt. Bernard Windstein, assigned to the Intelligence Section of the New Orleans Police Department.

Sgt. Windstein testified at the suppression hearing in the federal district court. The state and defendant had stipulated pri- or to the hearing on the motion to suppress in state court that the testimony at the federal hearing would be the same as that in state court. A transcript of the federal hearing has been made part of the record on appeal. Sgt. Windstein testified that he received information from Agent Carter on September 18, 1973 that defendant would be arriving in New Orleans with an explosive device, commonly called a time bomb, which he intended to place in a New Orleans residence. By and on September 26, 1973, Sgt. Windstein, who had remained in contact with Agent Carter, had accumulated more detailed information, learning that defendant would be arriving in the Slidell area via Interstate 10 en route to New Orleans sometime after dark on September 26; that defendant would be driving his own automobile, a 1968 Oldsmobile 98, white over blue, with two radio antennae on the rear (one of them a large whip-type that was tied down); that defendant’s automobile would bear an improper, substituted license plate numbered 61D2390; and that defendant would be carrying a fully loaded .45 caliber automatic pistol in the front portion of his trousers waistband. Sgt. Windstein received photographs of defendant as well. Agent Carter also gave Officer Windstein more specific information regarding the bomb and timing device. Agent Carter testified at the suppression hearing in federal court and corroborated Officer Windstein’s testimony.

On the evening of September 26, Sgt. Windstein* was informed by Agent Carter that defendant would be arriving in New Orleans about midnight. At nine o’clock, Officer Windstein and several other officers from the New Orleans Police Department staked out at various locations along the entrance to Orleans Parish at Interstate 10 and U.S. Highway 190 near Slidell. At about 11:55 o’clock that night, the anticipated time of arrival, Officers O’Sullivan and Loycano spotted an automobile entering Orleans Parish at Interstate 10 and U.S. 190 near Slidell. The vehicle, including the license plate, matched perfectly the description of it that Officer Windstein had obtained from Agent Carter. The police radioed Sgt. Windstein, who was stationed in his police car at a nearby location. Sgt. Wind-stein signaled for the vehicle to pull aside and stop. Defendant stopped his car, got out, and walked hurriedly over to Officer Windstein’s police car. Sgt. Windstein recognized him immediately. Officer John Evans, who accompanied Officer Windstein and also testified at the suppression hearing in federal court, ordered him to stop and to place his hands on the police car. Sgt. Windstein frisked defendant and detected and seized a fully loaded .45 automatic pistol. Officer Evans formally placed defendant under arrest for carrying a concealed weapon, and advised him of his Miranda rights. Officer Evans then asked defendant whether he had any other weapons in the car, to which defendant replied in the affirmative.

Sgt. Windstein testified that he was fearful that the bomb in the car would detonate. Inspecting the vehicle from the outside, he observed a wooden box, partially covered by a clothing bag, and a map of New Orleans on the front seat. He summoned the emergency division of the police department which removed the box from the car. The box contained several sticks of dynamite, a time clock, and numerous wires. The bomb’s dismantling was photographed, and the photograph admitted into evidence, as well as the gun and gun clip found on defendant’s person and the bag, box, parts of the bomb, map, and other weapons discovered pursuant to a search of defendant’s car.

Sgt. Windstein and other officers in the New Orleans Police Department had not independently verified the information received from Agent Carter. Nor had defendant been kept under surveillance between September 18 and September 26. Probable cause for obtaining a warrant for defendant’s arrest may not, therefore, have existed prior to September 26. When the New Orleans police, however, spotted defendant’s car arriving en route to New Orleans at the time Agent Carter told them it would arrive, and fitting Agent Carter’s description of it in every detail, their information was confirmed. At that point, the police clearly had reasonable cause for an investigatory stop of defendant’s vehicle. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); La.Code Crim.P. art. 215.1(A); State v. Robinson, No. 58,525, 342 So.2d 183 (La.1977); State v. Perique & Merritt, 340 So.2d 1369 (La.1976); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). The police officers were also aware that defendant was carrying a fully loaded .45 caliber automatic pistol. Thus, after he withdrew from his car, they were justified in restraining him and in conducting a “frisk” of his outer clothing. The gun and gun clip found on defendant’s outer clothing as a result of the frisk were lawfully seized and properly admitted in evidence. Terry v. Ohio, supra; Adams v. Williams, supra; La.Code Crim.P. art. 215.1(B) and (C).

The evidence seized from defendant’s automobile was also properly admitted in evidence. One of the few well-delineated exceptions to the warrant requirement of the fourth amendment is that a moving vehicle may be searched without a warrant where there exists probable cause to search the vehicle and where exigent circumstances make the securing of a search warrant impracticable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Hearn, 340 So.2d 1365 (La.1976); State v. Gordon, 332 So.2d 262 (La.1976); State v. Tant, 287 So.2d 458 (La.1974). By the time defendant was placed under arrest, Agent Carter’s information, now including his report that defendant would be carrying a pistol, was verified. Moreover, defendant had told Officer Evans that there were other weapons in his car. Probable cause to search the vehicle for the time bomb and other weapons and evidence of crime undeniably existed. Further, in view of the danger that the time bomb in the car would detonate, exigent circumstances existed that made the securing of a warrant to search the car not only impracticable but even foolhardy.

The trial judge did not err in denying the motion to suppress the items seized from defendant’s person and his vehicle and in overruling defendant’s objection to their admission in evidence. Assignment of Error No. 8 has no merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends that the trial judge erred in admitting nineteen of the state’s exhibits in evidence on the ground that the sole purpose of admitting these items in evidence was to inflame the jury.

Of the nineteen items admitted, thirteen were admitted without objection from defendant. Article 841 of the Code of Criminal Procedure provides that an error or irregularity cannot be availed of after verdict unless it was objected to at the time of occurrence. In accordance therewith, we have consistently held that an objection not contemporaneously raised in the lower court or ruled on by the trial judge cannot be availed of on appeal. State v. Finley, Bindom & Scott, 341 So.2d 381 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976); State v. Knight, 323 So.2d 765 (La.1975); State v. Burgy, 320 So.2d 175 (La.1975). Defendant objected to the admission of five of the six remaining items on the ground that they were not sufficiently identified rather than on the ground that they were inflammatory. Article 841 of the Code of Criminal Procedure also states that defendant must make known to the court the grounds for his objection. Accordingly, a new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975). Since defendant did not raise the ground of inflammatory nature of the evidence at trial, that issue is not properly before us for review.

Defendant arguably objected to one item of evidence, found under the front seat of his car, on the ground that it was inflammatory (S-7). The transcript, however, does not clearly reveal its identity, nor does defendant explain with any degree of particularity why the evidence would have inflamed the jury. We cannot, therefore, say the trial judge erred in admitting it in evidence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 10

Defendant called Agent Thompson Webb, Special Agent of the Federal Bureau of Investigation in Jackson, Mississippi, to testify. Agent Webb had provided Agent Carter with the information that led to defendant’s arrest. The Chief of the Criminal Division of the United States Attorney’s Office for the Eastern District of Louisiana, Assistant Attorney General Cornelius Heu-sel, had accompanied Agent Webb to the trial and was present in the courtroom. As defense counsel began to question Agent Webb with regard to his duties as an F.B.I. agent, Mr. Heusel interrupted and informed the trial judge that Agent Webb was voluntarily present in court without a subpoena and that before he could testify he would require from defendant a proffer of Agent Webb’s expected testimony and subsequent authorization from the Attorney General’s office. Defendant asked Agent Webb a few further questions, but the trial judge ruled that the witness did not have to answer and that he be excused. Defendant assigns this error to the court’s ruling.

Absent defendant’s compliance with certain procedures, applicable federal regulations promulgated by the Department of Justice prohibited Agent Webb from disclosing any information acquired in the course of his official duties. 28 C.F.R. § 16.22 and 28 C.F.R. § 16.24(c) provide as follows:

28 C.F.R. § 16.22:

No employee or former employee of the Department of Justice shall, in response to a demand of a court or other authority, produce any material contained in the files of the Department or disclose any information relating to material contained in the files of the Department, or •disclose any information or produce any material acquired as part of the perform-anee of his official duties or because of his official status without prior approval of the Department official or the Attorney General in accordance with § 16.24. 28 C.F.R. § 16.24(c):
If oral testimony is sought by the demand, an affidavit, or if that is not possible, a statement by the party seeking the testimony or his attorney, setting forth a summary of the testimony desired, must be furnished for submission by the United States Attorney to the appropriate Department official.

Since defendant failed to submit an affidavit or statement of the testimony desired of Agent Webb to the appropriate officials as required by 28 C.F.R. § 16.24(c), the witness properly declined to answer the questions regarding his official duties, and the trial judge’s ruling excusing him was correct.

Moreover, as defendant admits in his brief, the questions that he posed to Agent Webb were directed at disclosure of the identity of the confidential informant who supplied Agent Webb with the information that defendant would be transporting explosives into New Orleans. Defendant alleges that disclosure of the informant’s identity was vital to his defense because, he surmises, the informant may have planted, or may know who planted, the explosives in his vehicle without his knowledge.

As the United States Supreme Court stated in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the informer privilege, the privilege of withholding the identity of an informant who supplies information to law enforcement officers concerning crime, is founded upon public policy and seeks to advance the public interest in effective law enforcement. We have consistently held, therefore, that a confidential informant’s identity will be revealed only in exceptional circumstances. State v. Robinson, No. 58,525, 342 So.2d 183 (La.1977); State v. Russell, 334 So.2d 398 (La.1976); State v. Thorson, 302 So.2d 578 (La.1974). The burden is upon the defendant to demonstrate exceptional circumstances, and much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure. State v. Robinson, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972); State v. Greenbaum, 257 La. 917, 244 So.2d 832 (1971).

In the present case, no evidence was presented that the confidential informant participated in the crime, or that the informant knew that other persons had placed the bomb in defendant’s car without defendant’s knowledge. Defendant’s bare suggestion that the informant framed him is clearly insufficient to effect disclosure of the informant’s identity. State v. Dotson, supra.

In his per curiam to this assignment of error, the trial judge states that he concluded that defendant’s showing of exceptional circumstances was insufficient to warrant disclosure of the informant’s identity. We think the trial judge was fully justified in reaching that conclusion. Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant, who testified in his own behalf at the trial, objected to the trial judge’s instruction to the jury concerning the rules applicable to its consideration of his testimony. The trial judge overruled defendant’s objection. In this assignment of error, defendant contends that the trial judge committed reversible error by referring in particular to defendant as a witness and instructing the jury that it had a right to consider, as one of the factors in weighing his testimony, “the interests he may have in the outcome of the case.”

A trial judge should not, in his charge, by special reference to the accused or to any witness in particular, direct the attention of the jury to his interest in the result of the trial and thereby suggest that his testimony should be discounted by reason of his interest. State v. Elby, 145 La. 1019, 83 So. 227 (1919). Accord, State v. Harrison, 167 La. 855, 120 So. 477 (1929); State v. Rini, 151 La. 163, 91 So. 664 (1922); State v. King, 135 La. 117, 64 So. 1007 (1914). In the instant case, the trial judge initially instructed the jury regarding the factors that it may take into account in judging all witnesses’ testimony, i. e., “the witnesses’ conduct or bearing on the witness stand, the probability or improbability of their statements, the interest they may have in the outcome of the case.” Then the trial judge, instructing the jury with regard to the rules that govern consideration of defendant’s testimony, repeated the same factors that he had previously charged that the jury could take into account in evaluating the testimony of all witnesses. The trial judge concluded the charge by stating that defendant’s testimony “should be judged with the testimony of other witnesses in this case.”

In our opinion, the charge complained of was not prejudicial to defendant. The trial judge instructed the jury that defendant’s testimony was to be governed by the same rules by which other witnesses’ testimony is considered, and specifically stated that the jury should judge his testimony with that of other witnesses in the case. The trial judge did not pointedly direct the juror’s attention to defendant’s interest in the case and suggest that his testimony be discounted. Rather, the obvious, and correct, import and effect of his instruction was that the testimony of defendant was not to be disregarded merely because he was on trial, but should be weighed and considered along with the testimony of other witnesses. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 12

Defendant took the stand in his own defense. On cross-examination, the state asked him whether he knew a man named Sam Bowers, Jr. and whether he had stopped to see him en route to New Orleans, whereupon defendant moved for a mistrial. The jury was asked to leave the courtroom, as defense counsel explained that Sam Bowers, Jr. was the reputed head of the Ku Klux Klan in Mississippi. Defendant argued in support of his motion that the prosecutor’s mention of his acquaintance with Bowers prejudiced the jury, which included five black women, against him. The trial judge denied the motion for a mistrial, to which ruling defendant assigns error.

The trial judge did not err in denying defendant’s motion for a mistrial. Like the trial judge, we do not think the name “Sam Bowers, Jr.” had received such publicity that his name and role as reputed head of the Klan in Mississippi were known to the average juror in Orleans Parish. Nor did the context of the reference to Bowers suggest that he was a reputed Klan leader. We do not feel, therefore, that the mere reference to “Sam Bowers, Jr.” during the cross-examination prejudiced defendant. Moreover, the trial judge ordered the state not to pursue its line of questioning with regard to Sam Bowers, Jr. any further, thus foreclosing any chance of prejudice that might result- through other references to him. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 13

Defendant assigns as error the denial of his motion for a mistrial made when the state made the following remarks in closing argument:

.■ . In a few minutes, we will see exactly what would have happened if Mr. Beckwith had not been intercepted on 1-10. We will see what would have happened somewhere in the City of New Orleans, perhaps in the designation marked out in the map on Galvez Street where that bomb would have exploded after it had been set.
Now, he was arriving in New Orleans right at midnight. He had been stopped, but had he not been stopped he would have been able, surely, to get down South Galvez Street, plant this thing and then leave.

At that point, defendant made an objection to the state’s remarks, which the trial judge sustained. He then moved for a mistrial based on the state’s comments in closing argument. Although denying the mistrial, the trial judge admonished the jury to disregard the state’s remarks.

Defendant argues that the state’s reference to his intended use of the bomb was a reference to another crime that he committed or allegedly committed as to which evidence is not admissible, i. e., possession of an explosive with intent to harm life, limb or property in violation of La.R.S. 40:1471.-18. Under article 770(2) of the Code of Criminal Procedure, a mistrial shall be ordered, on motion of the defendant, when a remark or comment made within the hearing of the jury by the judge, district attorney, or court official refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

Since the penalty imposed by La.R.S. 40:1471.18 is imposed only upon persons who knowingly possess explosives without a license, knowledge is an essential element of the crime charged herein. Although knowledge, like intent, is a question of fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

Counsel are permitted in argument to make fair and reasonable conclusions from the facts introduced in evidence. La.Code Crim.P. art. 774 (1966); State v. Lockett, 332 So.2d 443 (La.1976); State v. Weathers, 320 So.2d 895 (La.1975); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). Further, counsel may properly comment on and summarize the evidence in arguing facts. State v. Luckett, 327 So.2d 365 (La.1975).

In the portion of the state’s closing argument forming the basis for defendant’s motion for a mistrial, the state referred to facts introduced in evidence that had shown that defendant was apprehended in his car en route to New Orleans and that a bomb was discovered within his car. The closing argument also referred to a map, previously admitted in evidence (S — 4), which Sgt. Bernard Windstein, Jr. had earlier testified he found on the front seat of defendant’s car. As the state pointed out in closing argument, the map was marked, with lines drawn to a designated location on Galvez Street in New Orleans. The state’s argument in this regard was especially pertinent because in his testimony at trial defendant had denied knowledge of the existence of the box containing the bomb which was found in his car at the time of his arrest and also denied that the map (S-4) was in his car when arrested. Clearly, the state could draw a reasonable conclusion from the facts introduced in evidence that defendant, apprehended with a bomb in his car and a map on the front seat inferentially indicating the bomb’s resting place, intended to use the bomb and thus transported the explosive knowingly.

Hence, the state’s argument referred to relevant evidence to show knowledge, an essential element of the crime charged, and therefore did not constitute a reference to another crime as to which evidence was not admissible. La.Code Crim.P. art. 770(2); State v. Clift, 339 So.2d 755 (La.1976); State v. Strange, 334 So.2d 182 (La.1976); State v. Scott, 320 So.2d 538 (La.1975). Accordingly, the trial judge did not err in denying defendant’s motion for a mistrial. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 14

Defendant alleges that the trial judge erred in denying his motion for a new trial.

Most of the grounds for the granting of a new trial that were alleged in defendant’s motion are identical to contentions raised in his assignments of error which we have found to be without substance.

Additionally, defendant argued in his motion for a new trial that his “guilt was not proven by credible and admissible evidence beyond a reasonable doubt as required by law.” The scope of this court’s appellate jurisdiction in criminal matters extends only to questions of law. La.Const. art. 5, § 5(C) (1974). A contention such as presented here that the defendant’s guilt has not been proved beyond a reasonable doubt is an attack on the sufficiency of the evidence, which is a question of fact. The jurisprudence is uniform in holding that we have no jurisdiction to pass on the sufficiency of the evidence in a criminal case. E. g., State v. Jack, 332 So.2d 464 (La.1976).

Only when it is alleged that there is no evidence at all of the crime charged or an essential element thereof is a question of law presented which this court can review. State v. Jack, supra; State v. Ackal, 290 So.2d 882 (La.1974). In his brief, defendant contends that there was no evidence that he had knowledge (an essential element of the crime) of the bomb’s presence in his car. We think the facts that the explosives were found in a box, covered by a burlap bag, on the right front floorboard of his own car, that a map of New Orleans that had markings leading to a certain street in the city was found nearby on the front seat, and that his car bore an improper, substituted license plate, was certainly some circumstantial evidence that defendant knowingly transported the explosives in this state. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 15

Defendant alleges the trial judge committed reversible error in refusing to permit him to call the prosecutor to the stand as an adverse witness for the purpose of showing that he deliberately propounded questions to defendant that served no other purpose than to appeal to the racial prejudice of the jury.

The questions propounded by the state formed the basis of Assignments of Error Nos. 12 and 13, which we have found to be without substance. In view of our disposition of those assignments of error, the trial judge did not err in denying defendant permission to call the prosecutor to the stand. This assignment of error has no merit.

In his brief, defendant contends that the trial judge erred in denying his motion to quash the bill of information on the ground that the statutes upon which the information was based are so vague that he could not discern which acts it condemns.

Article 1, section 13 of the Louisiana Constitution of 1974 provides that in a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. This constitutional guarantee requires that penal statutes describe unlawful conduct with sufficient particularity and clarity such that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Lindsey, 310 So.2d 89 (La.1975). Under the fourteenth amendment to the United States Constitution, words and phrases used in statutes must not be so vague and indefinite that any penalty prescribed for their violation would constitute a taking of liberty or property without due process of law. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); State v. Lindsey, supra.

La.R.S. 40:1471.8 provides, in pertinent part, that “[n]o person shall transport any explosive into this state or within the boundaries of this state over the highways, on navigable waters or by air, unless such person is possessed of a license or permit”. La.R.S. 40:1471.18 prescribes the penalty for knowingly violating La.R.S. 40:1471.8. We are of the opinion that these provisions “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute”. Papachristou v. City of Jacksonville, supra. Accordingly, the statutory provisions are not unconstitutionally vague.

We have reviewed the other attacks made on the validity of the statutory provisions in defendant’s motion to quash and in brief to this court and find them to be totally lacking in substance.

DECREE

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

DIXON, J., dissents.

DENNIS, J.,

concurs, but disagrees with the rationale of the opinion to the extent, if any, it depends on the federal regulations discussed in assignment of error no. 10.

      , Assignments of Error Nos. 6 and 16 have been neither briefed nor argued to this court. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . At the time Bartkus was decided, the proscription of double jeopardy included in the fifth amendment was not applicable to the states through the fourteenth amendment. Not until Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) did the Court hold that the fifth amendment guarantee against double jeopardy is enforceable against the states through the fourteenth amendment.

      . See, e. g., United States v. Jones, 174 U.S.App.D.C. 34, 527 F.2d 817 (1975); Speed v. United States, 518 F.2d 75 (8th Cir.1975); United States v. Kerrigan, 514 F.2d 35 (9th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975); United States v. Jackson, 470 F.2d 684 (5th Cir.), cert. denied, 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (1972); United States ex rel. Hill v. United States, 452 F.2d 664 (5th Cir. 1971).

      . The trial judge acknowledged at the hearing on the motion for change of venue that this article was written irresponsibly. The transcript of the hearing on defendant’s motion for a new trial states that additional articles published in the States-Item, as well as transcriptions of news broadcasts concerning the case were admitted in evidence. However, neither the States-Item articles nor the transcriptions were filed into the record on appeal.

      . In State v. Holmes, La., 342 So.2d 672, we granted writs to review the ruling of the trial judge ordering the state to produce the prior voting records of prospective jurors. This writ was granted on February 18, 1977; the matter will be set for hearing and decided in due course.

      . Compare our denial of the state’s application for certiorari in State v. Johnson & Pollard, 337 So.2d 516 (La.1976) wherein the trial judge ordered the state to produce arrest and conviction records of prospective jurors. We denied writs, stating that the evidentiary record was insufficient to rule upon the question. Following our denial of certiorari, the trial judge conducted an extensive evidentiary hearing relative to the compilation and dispensing of the records as well as defendant’s independent access to such records. The trial judge again ordered the state to produce the records for defendant’s inspection. We denied the state’s application for certiorari a second time (with three Justices dissenting from the refusal to grant the writ) noting that the trial judge had not abused his discretion. State v. Pollard & Johnson, 340 So.2d 989 (La.1977).

      . The trial judge properly did not admonish the jury to disregard all references to “Sam Bowers, Jr.,” since to have done so would only have called the jury’s attention to his name and possible notoriety.


author: SUMMERS, J.,

text:
    In re CLUB MAGAZINE et al.
    No. 59443.
    Supreme Court of Louisiana.
    April 4, 1977.
   In re: Motion to Recall Writ of Certiorari, to Remand the Case, and to Dismiss Proceedings, 342 So.2d 1117.

Motion granted and stay order recalled. The case is remanded to the Third Judicial District Court for the sole purpose of permitting the District Attorney to dismiss the case.

SUMMERS, J.,

dissents from the granting of the delay. This action of the Court delays the progress of this prosecution and the resolution of res nova issues affecting numerous prosecutions throughout the state.

DIXON, J., dissents from granting this motion.

CALOGERO, J., dissents, believing the motion should not be granted.


author: DIXON, J.,

text:
    STATE of Louisiana v. Randolph SCOTT.
    No. 59594.
    Supreme Court of Louisiana.
    April 7, 1977.
   In re: Randolph Scott, applying for writs of certiorari, mandamus and prohibition.

Writ denied. Trial judge should order portion of transcript necessary for proper appellate review of defendant’s assignments of error as the trial judge has indicated that he would do in his order.

DIXON, J.,

is of the opinion the constitution requires the defendant be furnished a complete transcript. Art. 1 § 19.


author: TATE, J.,

text:
    Howard H. HARGRODER v. CITY OF EUNICE et al.
    No. 59366.
    Supreme Court of Louisiana.
    April 7, 1977.
   In re: Plan Corporation applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 463, Third Circuit, Parish of St. Landry.

Writ denied. No error of law.

TATE, J.,

I concur in the denial. Of course, the defendant is entitled to modification or rescission of the injunctive relief if, before execution of the judgments, the building restrictions are waived or terminated, if and as authorized by law or by the act(s) creating such restrictions.

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


text:
    STATE of Louisiana v. Thomas GILL.
    No. 59507.
    Supreme Court of Louisiana.
    April 7, 1977.
   In re: Thomas Gill applying for writs of review and/or certiorari.

Not considered. Not timely filed.

TATE, J.,

concurs: Although the application was timely mailed according to its private postage meter date, it was not received here until two days past the delay. Under these circumstances, the timely mailing may be shown only by an official postage meter date. See Rule 10, Section 5(b) (1976).


author: DIXON, J., DENNIS, J.,

text:
    STATE of Louisiana v. Milton BLOUNT et al.
    No. 59679.
    Supreme Court of Louisiana.
    April 15, 1977.
   In re: William Yanda applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused. We find no constitutional violation in the ruling complained of. See prior application, State v. Yanda, La., 339 So.2d 847. In any event, there is an adequate remedy by appeal.

SUMMERS and CALOGERO, JJ., are of the opinion the writ should be granted.

DIXON, J.,

is of the opinion the writ should be granted, not understanding how the right of defendant to remain silent is not violated.

DENNIS, J.,

concurs for the reason that defendant has an adequate remedy by appeal.


author: DENNIS, J.,

text:
    STATE of Louisiana v. George W. D’ARTOIS.
    No. 59712.
    Supreme Court of Louisiana.
    April 19, 1977.
   In re: George W. D’Artois, applying for writs of certiorari, mandamus, prohibition and review.

Application denied; no abuse of discretion.

DENNIS, J.,

concurs noting that our ruling does not preclude defendant’s right to reapply in the event the actual preparations made to minimize the risks to defendant’s health are inadequate. •


text:
    STATE of Louisiana ex rel. Victor H. LINKLETTER v. Frank HOWARD, Sheriff of Vernon Parish et al.
    No. 58893.
    Supreme Court of Louisiana.
    April 11, 1977.
   In re: Victor H. Linkletter applying for writ of mandamus.

Granted. Evidentiary hearing ordered in Vernon Parish. Insofar as the application applies to Iberia Parish. See State v. Linkletter, No. 58,596.


text:
    STATE of Louisiana v. Edwin MOORE et al.
    No. 59672.
    Supreme Court of Louisiana.
    April 13, 1977.
   In re: State of Louisiana applying for writs of certiorari, prohibition or mandamus.

Writ denied. The stay order issued in this case is set aside. There is no error in the ruling complained of.


text:
    STATE of Louisiana v. Rickie WASHINGTON.
    No. 59621.
    Supreme Court of Louisiana.
    April 13, 1977.
   In re: Rickie Washington applying for certiorari, mandamus and prohibition.

Writ granted. The trial court is ordered to grant the appeal in forma pauperis and to fix the return date.


text:
    STATE of Louisiana ex rel. Thomas C. JOYNER, Jr. v. C. Paul PHELPS, Warden Department of Corrections State of Louisiana.
    No. 59245.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Thomas C. Joyner, Jr., applying for supervisory writs.

Writ granted. Evidentiary hearing ordered as to contentions one (see State v. Culotta, La., 343 So.2d 977) and two, of the habeas application.


text:
    STATE of Louisiana v. Ivan WISE.
    No. 59658.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Ivan Wise, applying for supervisory and remedial writs.

Writ denied. Applicant has an adequate remedy by appeal. There is no showing warranting the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Grandville TENNANT.
    No. 59590.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Grandville Tennant, applying for remedial writs.

Writ denied. The showing made does not warrant the relief prayed for.


text:
    BODCAW COMPANY v. N. M. SPURLIN.
    No. 59535.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Nathaniel Spurlin, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster, 341 So.2d 1266.

Writ denied. No error of law in the Court of Appeal opinion.


text:
    Saundra A. LIVINGSTON, wife of Ira Joseph Gelb v. Ira Joseph GELB et al.
    No. 59533.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Shell Provident Fund, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Application denied. The decision of the Court of Appeal is correct.


text:
    Mrs. Vera Mae ROBINSON et al. v. BEAUREGARD PARISH POLICE JURY.
    No. 59631.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Mrs. Vera Mae Robinson, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Beauregard, 342 So.2d 696.

Previous ruling vacated and set aside, and the application will be considered.


text:
    STATE of Louisiana ex rel. Lionel FIELDS v. STATE of Louisiana.
    No. 59396.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Lionel Fields, applying for writ of habeas corpus.

Writ denied. No merit in the application.


text:
    STATE of Louisiana ex rel. Lloyd HOLLAND v. Hon. Matthew S. BRANIFF, Judge Criminal District Court, Parish of Orleans.
    No. 59426.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Lloyd Holland, applying for supervisory and remedial writs.

Writ denied. Applicant’s contentions in this writ application will be reviewed in the forthcoming appeal, assuming appropriate assignments of error are presented.


text:
    Susan Kay DUNCAN v. L.H.H.R.A., DIVISION OF FAMILY SERVICES.
    No. 59525.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Susan Kay Duncan, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit (Civil Service Comm.), 341 So.2d 1217.

Writ denied. No error in the result.


text:
    Donald W. WATKINS v. WALLER OIL CO., INC. WALLER OIL CO., INC. v. Donald W. WATKINS.
    No. 59526.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Donald W. Watkins, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson, 341 So.2d 1264.

Writ denied. On the facts found by the courts below, the result is correct.


text:
    King LANAUX v. COMMISSION ON ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF PUBLIC SAFETY, State of Louisiana.
    No. 59529.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: King Lanaux, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 342 So.2d 265.

Writ denied. The decision of the Court of Appeal is correct.


text:
    In re Judge William H. DANIELS, City Court of Baton Rouge, Baton Rouge, Louisiana.
    No. 59745.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Judge William Hawk Daniels applying for certiorari, prohibition, mandamus and stay order.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction to interfere with the orderly proceedings before the Judiciary Commission.


author: GULOTTA, Judge.

text:
    Jean Orr HEBERT v. John Allen HEBERT.
    No. 8115.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Granted June 8, 1977.
    Emile L. Turner, Jr., New Orleans, for plaintiff-appellant.
    Lea, Lilley & Brainis, Roy S. Lilley, Me-tairie, for defendant-appellee.
    Before LEMMON, GULOTTA and MOR-IAL, JJ.
   GULOTTA, Judge.

Plain tiff-wife appeals from a judgment modifying support payments from $65.00 per week to $50.00 per week for support of the two children and $15.00 per week for mortgage payments on the home occupied by the wife and children. We affirm.

The chronology of events giving rise to this appeal is as follows: At the conclusion of the hearing of the rule for support of the children, on July 15, 1975, the trial judge stated orally:

“I fix child support in the amount of sixty five dollars a week, which involves half of the house note plus fifty dollars a week for each child.”

The attorney for the wife agreed to prepare the written judgment; and on July 21, 1975, the trial judge signed the judgment as prepared by the attorney for the wife. This judgment stated, in pertinent part:

U * * *
“2.) That defendant, John Allen Hebert, be and he is hereby condemned to pay to plaintiff, Jean Orr Hebert, for the support and maintenance of the two minor children, Phillip Scott Hebert, and Melissa Lynne Hebert, the sum of $65.00 per week; same to commence on Saturday, July 19, 1975;”

A default judgment of separation was granted in favor of the wife on April 22, 1976, and the order of support was carried over from the signed July 21, 1975 judgment ordering the husband to pay $65.00 per week for the support of the two children. Subsequently, however, pursuant to a rule by the husband to show cause why the judgment of July 21,1975, should not be corrected, the trial court on June 11, 1976, “corrected” the signed July 21, 1975 judgment by amending it to read as follows:

“That defendant John Allen Hebert be and he is hereby condemned to pay plaintiff, Jean Orr Hebert, for the support and maintenance of the tow [sic] children, Philip Scott Hebert and Melissa Lynne Hebert the sum of $65.00 per week, of which $50.00 is to be in cash, and $15.00 per week is to be paid for the payment of the mortgage on the home owned by the parties for which defendant will receive credit as a payment on community property, same to commence on Saturday, July 19, 1975”

Both parties to this appeal acknowledge that the July 21, 1975 judgment is a final judgment. See LSA-C.C.P. arts. 1841,1842 and 1911. It is from this amended judgment of June 11, 1976, however, that the plaintiff-wife appeals. She seeks a reinstatement of the earlier, written July 21, 1975 judgment.

It is the wife’s contention that the July 21, 1975 judgment cannot be amended. In this regard, she urges the applicability of LSA-C.C.P. art. 1951 which sets forth the circumstances under which amendment is permissible. This article provides as follows:

Art. 1951. Amendment of judgment
“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.” According to Mrs. Hebert, the modification made by the trial judge in his judgment on

June 11, 1976, is a change in substance and not merely an alteration of phraseology, or a correction of calculation. She contends that a judgment ordering support payments in the sum of $65.00 per week is substantially different from a judgment ordering support in the sum of $50.00 per week and an additional $15.00 per week for mortgage payments, because the $15.00 payment constitutes a credit which the husband might later claim in a partition of the community property. The wife further claims that (for income tax purposes) a judgment stipulating a credit to the husband for house payments reduces her tax deductions.

Defendant-husband, on the other hand, contends that the written judgment of July 21, 1975, prepared by the attorney for the wife, was incorrect because it did not reflect the true intentions of the court as expressed orally on July 15, 1975. Accordingly, the husband argues that the 1976 modification by the court to conform with the original intention of the judge is merely a change in phraseology, not substance, and, as such, is permitted under the terms of LSA-C.C.P. art. 1951. We agree.

We deem the June 11, 1976 judgment to be merely a change in phraseology made to conform with the oral pronouncement of the trial court on July 15, 1975. This written amendment does not change the original intention of the trial judge; indeed, the amended judgment corrects the mistake of the attorney for the wife who, having heard the oral pronouncement of the judge, offered to prepare the written judgment. The judgment so prepared did not reflect the court’s intention, and it is the phraseology of the prepared judgment which has been changed by the written amendment. The substance of the trial court’s judgment, as expressed in the oral pronouncement, remains unchanged.

In so holding, we distinguish our case from those cases cited by the wife. In the cited cases, no issue was presented, as in our case, involving an amendment of a written judgment prepared by an attorney not in conformity with the trial judge’s oral pronouncement from the bench. In our case, if the trial judge had stated from the bench an intention to award $65.00 per week in child support without further specification, the judgment prepared by the attorney would have been in conformity with the oral judgment. In that event, the cases cited by the wife would be controlling, and the amended judgment of June 11, 1976, would constitute a change in substance. Our factual situation is entirely different. In the instant case, the change in phraseology accomplished by the amended judgment accurately expresses the judgment intended to be signed by the trial judge.

Accordingly, the judgment of the trial court on June 11, 1976, correcting and amending the signed judgment of July 21, 1975, is affirmed.

AFFIRMED.

LEMMON, Judge, dissents and assigns reasons.

The substance of the 1975 judgment was altered by the judgment under review in this appeal (which was rendered by a different trial judge). If the 1975 judgment did not conform with the original trial judge’s expression from the bench at the conclusion of trial, the husband’s recourse was a timely application for new trial or a timely appeal. Amendment of the judgment pursuant to C.C.P. art. 1951 is not a proper method to change the substance of a written final judgment.

      . The trial judge obviously intended $50.00 per week for two children.

      . McGee v. McGee, 157 So.2d 312 (La.App. 4th Cir. 1963); Burnett v. Burnett, 170 So.2d 404 (La.App. 3d Cir. 1965); Hug v. Hug, 230 So.2d 333 (La.App. 4th Cir. 1970), writ refused, 255 La. 811, 233 So.2d 250 (1970); King v. King, 253 So.2d 660 (La.App. 1st Cir. 1971), writ denied, 260 La. 128, 255 So.2d 353 (1971).

      . The full discourse at the end of trial was:
      “THE COURT: Is she paying the house note?
      MR. TURNER: Yes sir, she’s paying all expenses.
      THE COURT: You can either pay her fifty dollars a week plus one half of the house note which is another seventy one a month — I fix child support in the amount of sixty five dollars a week, which involves half of the house note plus fifty dollars a week for each child.
      MR. TURNER: When is that to commence, Your Honor?
      THE COURT: Immediately.
      MR. TURNER: She got a payment on July 12th.
      THE COURT: The next payment is sixty five dollars a week.
      MR. TURNER: I’ll prepare the judgment.”
      From this discussion I conclude that the 1975 judgment did conform with the trial judge’s verbal expression. The trial judge merely indicated that he considered the amount of the house note in fixing the total child support obligation which is reflected in the 1975 judgment (just as he would have considered the amount of rent, which involves no credit for payment on the acquisition of community property).
      Indeed, the above quoted statement does not mention any “credit as payment on community property”, and if the 1975 judgment had included precisely the trial judge’s oral statement, the husband would not be entitled to any credit for payment toward the price of community property. The judgment appealed from, which allows such credit, therefore alters the substance even of the oral reasons for judgment.


author: BOUTALL, Judge. REDMANN, Judge,

text:
    ALLSTATE INSURANCE COMPANY v. LOUISIANA GAS SERVICE COMPANY.
    No. 8241.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Granted June 8, 1977.

      Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart and George F. Riess, New Orleans, for Louisiana Gas Serv. Co.
    Rudolph R. Schoemann, New Orleans, for Allstate Ins' Co' and William C' Coughran.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This suit arises from an explosion and gas fire which destroyed the residence and photography studio of William C. Coughran on July 11, 1971. Coughran’s insurer, and by way of amendment, Coughran himself, sought recovery of property damage. There was a trial by jury, and the jury’s award of $90,000 damages was made the judgment of the court. Defendant appeals that judgment.

Defendant’s appeal is limited to two issues: the issue of prescription barring the claim of William Coughran and the issue of quantum of damages. We first deal with the issue of prescription.

The original petition was filed by Allstate Insurance Company on May 17, 1972, seeking recovery of the sum of $22,000 which the insurer had paid to William Coughran under its insurance policy. Under the insurance policy the insurer was subrogated to the right to recover any money paid by the insurer arising from the claim. In this original petition, paragraph VII alleged the explosion and fire completely destroyed the premises and the owner’s contents causing damages in the sum of about $28,808.23.

The first amended petition was filed on November 27, 1974. In this amended petition William Coughran first appeared as additional plaintiff and sought recovery of the sum of $6,808.23, the difference between the alleged value of the property lost and the amount of insurance proceeds paid by Allstate.

The second amended petition was filed on April 23, 1975. In this second amended petition, William Coughran sought to amend paragraph VII of the original petition to read as follows:

“However, the explosion and ensuing fire, completely destroyed the premises and the contents, causing William C. Coughran to lose his entire business, and he itemizes his damages as follows:
(1) Loss of premises and its contents $36,012.40
(2) Loss of entire business, including good will and future earning capacity 100.000.00
• Total: $136,012.40”

To support their amendments, the appellees rely upon the case of National Surety Corporation v. Standard Accident Insurance Co., 247 La. 905, 175 So.2d 263 (1965), contending that LSA-R.S. 9:5801 is to be given a liberal interpretation. LSA-R.S. 9:5801 says, in part:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors and interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.”

In National Surety Corporation v. Standard Accident Insurance Co., (supra), the plaintiff insurer had timely filed suit to recover workmen’s compensation benefits paid to its insured against a third party tort feasor. Later, the injured employee intervened in the suit to recover damages for personal injuries after the prescriptive period had expired. In response to the defendant’s plea of prescription, the intervenor argued that prescription was interrupted with the timely filing of the first suit. The Supreme Court held that, although there were two suits, there was but one cause of action resulting from a single tort, the alleged negligence of the defendant. The court noted at page 266:

“A cause of action is an act on the part of a defendant which gives rise to a plaintiff’s cause of complaint; ‘the existence of those facts which give a party a right to judicial interference in his behalf’; ‘the situation or state of facts which entitles a party to sustain an action’.”
* * * * * *

and at page 268:

“We find that one principal cause of action resulting from a single tort exists herein—namely, the alleged negligence of Brown Ferguson. Marquette Casualty Company v. Brown [235 La. 245, 103 So.2d 269], supra; Lewis v. Republic Supply Co., La.App., 155 So.2d 200. As stated supra, the employer’s insurer alleged negligence, and the employee adopted his allegations. Recovery is predicated upon the proof of the sole or joint negligence of Ferguson; if damages accrue to Tyson, benefits and expenses paid by plaintiff must be subtracted from them.
* * * * * *
“It is true that herein the monetary demand of the employer’s insurer is substantially smaller than the monetary demand of Tyson, but both demands arise and stem from one cause of action.”

The case before us is even more limited than the case of National Surety Corporation (supra). In this case, both Allstate Insurance Company and William Coughran are seeking recovery for the destruction or damage of certain property, namely William Coughran’s home, photography studio, photography equipment and supplies. William Coughran additionally seeks to recover a further element of damage (loss of business) from the same property loss for which Allstate Insurance Company seeks recovery, caused by the same negligent act. In the first amended petition, Coughran simply claims the amount of property loss previously alleged but not sought by the subro-gee. In the second, he increased the value of the property lost or damaged as a result of defendant’s negligence, and added another element of damages.

We believe that Article 1153, Louisiana Code of Civil Procedure applies to this case:

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

A reliance upon the importance of notice rather than procedural technicalities has enabled Louisiana courts to give article 1153 a liberal interpretation. In Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.S.Ct., 1973), the court said:

“In Louisiana, the essence of interruption of prescription by suit has been notice to the defendant of the legal proceedings based on the claim involved. If suit is filed in a court of competent jurisdiction, prescription is interrupted.”

The commentators support this liberal view of allowing amendments to relate back. When it has been established that the defendant has been judicially notified, so as to acquire sufficient knowledge of the rights which are sought to be enforced against him by a suit, there results a legal interruption in favor of those to whom the rights may belong. 8 Oeuvres de Pothier, Traite de la Prescription, Partie I, Chapitre II, No. 54 (1835).

In his article, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 234 (1969), Justice Tate suggested requirements for allowing amendments to relate back to the original filing:

“There should be some factual connexity between the original and amended assertions, together with some identity of interest between the original and supplemental party, before the amendment is excepted from the interests intended to be protected by the prescriptive statute.”

We have no difficulty in finding that the first amended petition seeking recovery of the $6,808.23 relates back to the time of the filing of the original petition in light of the fact that the defendant had complete knowledge of the allegation of the loss of that amount by way of paragraph VII of the original petition.

In considering the timeliness of the filing of the second amending petition which sought to increase the monetary value of the property lost and/or destroyed by the explosion and fire, we apply the suggested test for allowing amendments to relate back set forth in 43 Tul.L.Rev. quoted above.

The factual connexity between the original and amended petitions is evident from the pleadings themselves. Indeed, the facts of negligence and the property loss are identical. As to identity of interests, Coughran and Allstate Insurance Company had identical interests in showing property loss in excess of $22,000. We see no difference basically between the subrogor-subrogee relationship in this case and that of National Surety Corporation, supra. We further note that the trial judge continued trial from date of filing the second amended petition (April 23, 1975) to October 22, 1975, giving defendant ample time to meet the new element of loss alleged.

The plea of prescription was not made in the trial court, so there is of course no judgment concerning it. The plea was filed for the first time in this court. For the reasons stated above, we are of the opinion that it should be overruled and dismissed.

We now turn to the issue of quantum of damages.

Appellant contends that William Coughran failed to prove with any certainty the damages allegedly sustained in excess of $27,567.38. We note that the evidence of proof of loss is necessarily sketchy due to the fact that all of William Coughran’s records were destroyed by the fire. In the absence of the records, the plaintiff Cough-ran testified to the value of his losses and supported his testimony regarding replacement cost and lost profits with the testimony of another photographer. Thus, some basis was established from which the jury could determine damages.

In the assessment of damages that cannot be fixed with preciseness, there is much discretion left to the jury. LSA-C.C. 1934(3). To modify an award for damages, an appellate court must find that the trial judge or jury has abused the “much discretion” accorded by the codal provision. Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971). We cannot find that the jury abused its “much discretion” in its award in the case before us, and accordingly, the award of damages in the amount of $90,000 is affirmed.

For the foregoing reasons, the judgment appealed is affirmed.

AFFIRMED.

REDMANN, Judge,

dissenting in part.

The prescription by which debts are released, is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim. (La.C.C. 3459).

Here, the individual insured was “silent . without urging his claim” for the prescriptive period of one year, C.C. 3536. Under codal principles, the exemption of prescription should be maintained.

National Surety Corp. v. Standard Acc. Ins. Co., 1965, 247 La. 905, 175 So.2d 263, however, interprets La.R.S. 9:5801’s interruption of “[a]ll prescriptions affecting the cause of action [first] sued upon” as interrupting prescription in favor of all possible plaintiffs. I concur that we are constrained to follow National Surety and its concept of cause of action for purposes of R.S. 9:5801.

On quantum I dissent. The bulk of the award (that for good will and lost earnings) is unsupported by the evidence.

      . Comment, 14 Tul.L.Rev. 601, 609 (1940).