author: SUGG, Justice.

text:
    CELOTEX CORP. et al. v. BECKNELL CONSTRUCTION, INC.
    No. 48277.
    Supreme Court of Mississippi.
    Jan. 19, 1976.
    Rehearing Denied Feb. 10, 1976.
    Fox & Gowan, David K. McGowan, Jackson, for appellants.
    Heidelberg, Woodliff & Franks, Timothy R. Smith, Sam E. Scott, Jackson, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   SUGG, Justice.

Becknell Construction, Inc. filed suit in the Circuit Court of Rankin County against Campbell Roofing & Metal Works, Inc., Celotex Corp. and Barrett Roofing Co. to indemnify Becknell for damages sustained by it resulting from faulty workmanship of Campbell and defective materials supplied to Campbell by Barrett. Campbell was a subcontractor of Becknell and Barrett is a wholly owned subsidiary of Celotex. Judgment was rendered against Campbell and Celotex for $32,766.-10 in favor of Becknell. Campbell did not appeal but Celotex appealed and states that since Barrett is its wholly owned subsidiary Celotex is the only real party appellant. Becknell cross-appealed seeking- recovery from Campbell and Celotex of attorneys’ fees and expenses incurred by it in defending a suit against it by the Jackson Municipal Airport Authority and for attorneys’ fees and expenses in prosecuting its suit against Campbell and Celotex for indemnity.

Becknell entered into a contract with the Airport Authority to construct major additions and alterations to the property of the Airport Authority in Rankin County. Under the contract between Becknell and the Airport Authority, Becknell warranted and guaranteed that all work would be of good quality, free from faults and defects and in compliance with the plans and specifications. The warranty included defects resulting from the use of inferior materials and workmanship. Becknell entered into a subcontract with Campbell for constructing a roof and Campbell in turn warranted its work against all defects of materials and workmanship.

Soon after construction of the roof was completed the roof blistered and leaked. Two unsuccessful repair attempts were made, the first by Campbell and the second by Campbell at the direction and expense of Celotex. In the original installation of the roof and in both repair attempts Celo-tex materials were used. When the roof continued to leak after these two repair attempts, the Airport Authority gave notice to Becknell that it would have the roof replaced by another contractor if Becknell did not replace it. Becknell in turn gave notice to Campbell and Celotex, and when they failed to act, the Airport Authority had the roof replaced by Southern Roofing Company. Thereafter the Airport Authority filed suit against Becknell which resulted in a judgment against Becknell in the amount of $32,546.05. Ample notice of the pending litigation was given by Becknell to Celotex and Campbell wherein Becknell requested Celotex and Campbell to indemnify and hold Becknell harmless against all claims and damages of the Airport Authority. Celotex and Campbell did not participate in the litigation.

The first question is whether Becknell is entitled to be indemnified by Celotex. This question was answered affirmatively in Bush v. City of Laurel, 215 So.2d 256 (Miss.1968). The City of Laurel and Bush were sued by Mrs. Upton who obtained a verdict of $84,583. On appeal, in City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965), the liability of all but one of the defendants was affirmed, but the case was reversed and remanded for a new trial on the question of damages only. While Upton was pending in the Supreme Court, the City of Laurel sued Bush for indemnity claiming that its negligence was passive and Bush was liable for the damages sustained by Mrs. Upton because of his negligence in leaving a ditch open while working on the city streets. On remand, Upton was finally settled by payment of $15,000 by Bush and $10,000 by the City of Laurel to Mrs. Upton. 215 So.2d at 257.

The City of Laurel obtained a judgment against Bush for the $10,000 paid in settlement of the case plus attorneys’ fees and court costs which it paid out defending Upton. The Court affirmed the judgment in Bush v. City of Laurel, supra, on the theory that Bush was obligated to indemnify the City:

An obligation to indemnify may arise from a contractual relation, from an implied contractual relation, or out of liability imposed by law. When one person is required to pay money which another person in all fairness should pay, then the former may recover indemnity from the latter in the amount which he paid, provided the person making the payment has not conducted himself in a wrongful manner so as to bar his recovery. 42 C. J.S. Indemnity § 20 (1944). We find that the liability of Bush arose by operation of law. (215 So.2d at 259-60).

Becknell was required to pay money because of the defective workmanship of Campbell and defective materials furnished Campbell by Celotex. Becknell’s liability arose because it was a prime contractor and warranted all materials and workmanship. Becknell paid the Airport Authority the cost of placing a new roof on the buildings and, in all fairness, this expense should be borne by Campbell and Celotex. We therefore hold that Becknell is entitled to recover on the theory of indemnity.

Celotex urges that the proof was not sufficient to sustain the verdict of the jury because it was not shown that the materials furnished by Celotex were defective. We have carefully considered the record and find that the jury reached its verdict on conflicting evidence. We therefore do not disturb the verdict of the jury as to liability.

The final question for disposition is whether Becknell is entitled to recover attorneys’ fees and court costs from Celotex. The judgment rendered against Becknell in favor of the Airport Authority in the amount of $32,766.10 represents the judgment previously rendered against Becknell in favor of the Airport Authority plus interest.

Becknell contends that it is entitled to attorneys’ fees for defending the suit against it by the Airport Authority and also for attorneys’ fees in bringing the suit against Becknell and Campbell.

The general rule is that an award of attorneys’ fees in indemnity cases is limited to the defense of the claim indemnified against. It is stated in 41 Am.Jur. 2d Indemnity § 36, at 726-727 (1968) as follows:

The allowance of attorneys’ fees is limited to the defense of the claim indemnified against and does not extend to services rendered in establishing the right of indemnity. (Emphasis supplied.)

To the same effect is 42 C.J.S. Indemnity § 13, at 587 (1944). Accord, Whatley v. Crown Sash Door, Inc., 514 S.W.2d 467, 469 (Tex.Civ.App.1974); Fidelity & Casualty Co. of New York v. Bisso, 179 La. 56, 153 So. 19, 21 (1934); Miller v. Bush, 42 S.W.2d 156, 159 (Tex.Civ.App.1931); Southwest National Bank v. Employers’ Indemnity Corp., 12 S.W.2d 189, 191 (Tex.Com.App.1929). With reference to allowance of attorneys’ fees to an indemni-tee, we stated in Bush:

As a necessary part of his damages the indemnitee may recover reasonable attorney’s fees, expenses including court costs, and interest, and the cost of an unsuccessful appeal when taken with the indemnitor’s authority. Morse Auto Rentals, Inc. v. Dunes Enterprises, 198 So.2d 652 (Fla.Ct.App.1967); Fontainebleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla.Ct.App.1962); Pure Oil Co. v. Geotechnical Corp., 129 F.Supp. 194 (E.D.La.1955); 27 Am.Jur. Indemnity § 27 (1940); 42 C.J.S. Indemnity § 13 (1944). (215 So.2d at 260).

Becknell expended $2,337.85 for court costs and attorneys’ fees in defending the suit against it by the Airport Authority. In accord with our holding in Bush, Becknell is entitled to recover for these items.

In Bush the question of attorneys’ fees for bringing the indemnity suit against Bush, indemnitor, by the City, indemnitee, was not raised and not decided. Becknell claims that it is entitled to recover additional expenses and attorneys’ fees expended in its suit against Campbell and Celotex to establish its right of indemnity. In accord with the authorities cited above, we hold that Becknell is not entitled to recover attorneys’ fees and expenses from Campbell and Celotex in its suit against them to establish its right of indemnity.

We therefore affirm the lower court judgment of $32,766.10 against Campbell and Celotex, and render judgment here on Becknell’s cross-appeal in the amount of $2,337.85 against Campbell and Celotex for court costs and attorneys’ fees expended by Becknell in defense of the suit against it by the Airport Authority.

Affirmed in part, reversed in part and rendered.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, J J., concur.

      . There is an obvious error of $10 in the jury-verdict and judgment. However, no point is made of this on appeal. The record shows that the judgment against Becknell of $32,-546.05 plus interest of $230.05 totals $32,-776.10.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY v. Mrs. Ray C. CUMBEST.
    No. 48462.
    Supreme Court of Mississippi.
    Jan. 13, 1976.
    Megehee, Brown, Williams & Corlew, Pascagoula, for appellant.
    Cumbest & Cumbest, P.A., John L. Hunter, Pascagoula, for appellee.
    - Before PATTERSON, ROBERTSON and SUGG, JJ.
   ROBERTSON, Justice.

Mrs. Ray C. Cumbest, widow of Ray C. Cumbest, brought suit in the Circuit Court of Jackson County against Provident Life and Accident Insurance Company to recover $5,000 life insurance on the life of her late husband alleged to be due under the terms of a group policy of insurance issued to International Paper Company for its employees. The circuit court, sitting as judge and jury, rendered judgment for $5,563.28, being life insurance and interest.

Appellant assigns as error:

“The Court erred in holding for the Appellee for the reason that ‘due proof’ of total disability' was not furnished in order to obtain continuation of life insurance coverage without payment of life insurance premium.”

Cumbest worked as a millwright for International Paper Company and qualified for the group policy issued to the Craftsmen’s Council, the labor union of the employees of International. He became totally disabled in late 1968, and proof of total disability was furnished on January 1, 1969. Under the contract provisions of the group policy, he qualified for waiver of premium because ■ of total disability and continuation of the life provisions of the group policy. The Company acknowledged Cumbest’s total disability and raised no question about continuation of his total disability until it received Dr. John E. Leach’s “Attending Physician’s Statement of Continued Disability” on April 1, 1971. Dr. Leach, Cumbest’s physician, examined him on March 29, 1971, and reported Cum-best as being no longer totally disabled. On the attending physician’s report form, Dr. Leach answered the question as to when Cumbest would be able to return to work with the one word “indeterminate”.

The company again wrote Cumbest on April 7, 1971, enclosing another attending physician’s report form, and asking for a clarification of the word “indeterminate”. Cumbest took the “Attending Physician’s Statement of Continued Disability” form back to Dr. Leach. Dr. Leach filled out this form on April 19, 1971, stating that Cumbest was not now totally disabled and was able to go back to work on March 21, 1971. This Attending Physician’s Report was received by the company on May 17, 1971.

On May 28, 1971, the company wrote Cumbest, with a copy of the letter to the Union, “The Craftmen’s Council”:

“To be eligible for continuation of life insurance because of total disability, it is required that you be so disabled as to be prevented from working for compensation or profit and that you furnish proof of such total disability annually.
“Since your attending physician has shown that you are able to return to work and are no longer totally disabled, you are no longer eligible for continuation of life insurance.”

R. J. Whittington, the Union representative with the International Paper Company, spoke with Cumbest about the copies of various letters that he had received including the letter of May 28, 1971. Upon Whittington’s inquiry, Provident Life furnished additional attending physician’s report forms and suggested that Cumbest go see another doctor concerning his disability. Whittington and Cumbest went to another doctor’s office twice, but they never did see the doctor. No further proof of continuing total disability was submitted to the Company. Cumbest died on August 15, 1972, about fifteen months after receipt of the letter of May 28, 1971, advising him that he was no longer eligible for continuation of life insurance under the waiver of premium provision of the policy.

The pertinent provisions of the group policy concerning waiver of premium in the event of total disability were:

“If an insured Employee whose active work for the Employer ceases because of total disability beginning before his sixtieth birthday, submits to the Home Office of the Insurance Company due proof of such total disability and that it has continued without interruption for a period of not less than nine months and still exists, the Insurance Company will, by written notice- to the Employee, acknowledge the existence at that time of such total disability, but only if such proof is received during the Employee’s lifetime and within one year after discontinuance of premium payments for his life insurance.
“After acknowledgment of the Employee’s total disability as described above, if the Employee submits annually thereafter within three months prior to the anniversary of the original acknowledgment, due proof that total disability has continued without interruption from the date the Employee ceased active work for the Employer and if death shall occur during the continuation of such total disability, then upon receipt at the Home Office of the Insurance Company within one year after death of due proof of such death and of such total disability, the Insurance Company will pay to the Employee’s beneficiary the amount of the Employee’s life insurance in force at the time of discontinuance of premium payments for such insurance.” (Emphasis added).

This was a valid provision of the contract of insurance. Not only did Cum-best fail to furnish annual proof of continued total disability, but also Dr. Leach’s attending physician’s reports of March 29, 1971, and April 19, 1971, actually stated that Cumbest was not now totally disabled. Cumbest died fifteen months later without furnishing any proof of the continuance of total disability as required by the contract of insurance in order to secure waiver of premium.

The United States Supreme Court in Bergholm v. Peoria Life Insurance Company, 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416 (1932), said in a similar case:

“Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof.” 284 U.S. at 491-92, 52 S.Ct. at 231, 76 L.Ed. at 419. (Emphasis added).

Mississippi has followed this rule of law that due proof of the continuance of total disability is a condition precedent to liability in the following cases: Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445 (1932); Mutual Life Ins. Co. v. Hebron, 166 Miss. 145, 146 So. 445 (1933); New York Life Ins. Co. v. Quinn, 171 Miss. 396, 157 So. 902 (1934); Metropolitan Life Ins. Co. v. Lindsey, 184 Miss. 359, 185 So. 573 (Miss.1939); Cox v. Lamar Life Ins. Co., 208 Miss. 146, 43 So.2d 884 (1950).

The trial court erred in rendering judgment for the plaintiff. The judgment is reversed and judgment rendered here for the defendant.

Reversed and rendered.

GILLESPIE, C. J., RODGERS, P. J., and INZER, SMITH, WALKER and BROOM, JJ., concur.


author: DIXON, J.,

text:
    Brenda Gayle Fontenot Johnson GRIMES v. Wayne JOHNSON.
    No. 57379.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re Brenda Gayle Fontenot Johnson Grimes, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Allen, 323 So.2d 150.

Writ refused. On the facts found by the Court of Appeal, the result is correct as to this relator.

DIXON, J.,

is of the opinion the writ should be granted. It appears the Courts below have misinterpreted “unfit” as applies to the mother. There is no right in law to custody in grandparents when it is contested by the mother.

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


author: SUMMERS, J.,

text:
    STATE of Louisiana v. William MARSHALL.
    No. 57424.
    Supremo Court of Louisiana.
    Feb. 6, 1976.
   In re District Attorney, Parish of Jefferson, applying for writ of review.

Writ refused. Under the circumstances shown, there is no abuse of discretion

SUMMERS, J.,

dissents from the denial of this application. The trial judge’s ruling violates the reported decisions of this Court refusing to extend the rule of pretrial discovery to matters of this nature. See State v. Lewis, 315 So.2d 626 (La.1975).

DIXON, J., concurs in the denial. The ruling of the trial judge is correct.

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


author: TATE, J., DIXON, J.,

text:
    STATE of Louisiana v. Luther James BRADFORD and Robert Hayward Blumberg.
    No. 57340.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re Luther J. Bradford and Robert H. Blumberg, applying for writ of habeas corpus.

Writ denied.

TATE, J.,

dissents on the ground that it is fundamentally unfair for the state to secure a conviction based on the evidence which it should reasonably know is perjured. Further, allegations that an un-counselled conviction was used to impeach credibility in violation of Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).

DIXON, J.,

concurs in the denial. The evidence referred to was known by the applicants to be false, was collateral to the issues and might be relevant in mitigation, but was clearly not determinative of guilt.

CALOGERO, J., would grant this writ.


author: TATE, J.,

text:
    STATE of Louisiana v. Rennie ATWELL.
    No. 57446.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Rennie Atwell, applying for supervisory and remedial writs.

Application denied; the showing made does not warrant the relief sought.

TATE, J.,

concurs for the additional reason that, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the state shall furnish the accused data of the nature sought as to the prospective witness in a given prosecution, at least after the witness’s testimony. The sweeping relief demanded is not necessary to protect the rights of a given accused.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Doyle LUNEAU.
    No. 56745.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    C. Jerome D’Aquila, New Roads, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Cashio, Dist. Atty., Joseph W. Cole, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant, represented by appointed counsel, was charged with the crime of theft of tires valued at $250. After trial by jury the defendant was convicted and sentenced to serve six months in jail.

During the course of his trial, defendant reserved one bill of exceptions which he relies upon on appeal for reversal of his conviction and sentence. He alleges that the trial court erred when it refused to allow a witness, Raphael Luneau, brother of the defendant, to testify to what he heard Silas Mayeaux say.

Following is the testimony in question:

“BY MR. D’AQUILA:
Q. Now, you were at your home when Silas Mayeaux drove up there. Is that correct?
A. Yes, sir, right.
Q. Who else was present ?
A. Robert Paul and I, Doyle and Silas, so we walked outside and Silas had opened his trunk. And you know, Doyle said, look here. And so I glanced over there and there was some tires there. They looked— well,, they looked new, you know, but I rightly can’t say if they were brand-new but they did look new. And I heard Silas say that—
MR. COLE: Your Honor, I’ll have to raise the objection now.
THE COURT: Well, I told you not to testify to what anybody said. Just testify to what you saw or what you did.
A. Well, in the conversation between—
Q. Let me ask you this question. Was your brother there, Doyle ?
A. Yes, sir.
Q. He’s the defendant • in this case. Was he present ?
A. Yes, sir, he was.
Q. Was the statement made by Silas Mayeaux made in his presence, in the presence of Doyle Luneau ?
A. Yes, sir.
Q. Your brother?
A. Yes, sir.
Q. Did it pertain to tires, any kind of tires ?
A. Yes, sir.
MR. D’AQUILA: Your Honor, I think it’s admissible under those circumstances.
MR. COLE: I know of no exception to cover such a thing.
THE COURT: On what basis do you find it’s an exception ?
MR. D’AQUILLA: For the purposes of impeachment. I laid the proper foundation in that Silas May-eaux denied ever bringing tires over there. And I think all testimony, even his statements regarding the tires being brought to Luneau’s home is admissible for the purposes of impeachment.
THE COURT: The objection is sustained.”

Defense counsel argues that the above evidence is admissible for impeachment purposes to show prior inconsistent statements by witness Mayeaux. See La.R.S. 15:486; 15:493.

The above testimony is the only portion of the record before us for review. La. Code Crim.Proc. arts. 841, 843, 844 (1966). In the state in which we find this record, we cannot determine what Silas Mayeaux said, and for this reason we are unable to judge the correctness of the ruling of the trial judge.

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


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. David E. GERALD.
    No. 56852.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Sonny Napoleon Stephens, Winnsboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny Carl Parkerson, Dist. Atty., Clifford L. Lawrence, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Gerald was charged by bill of information with operating a motor vehicle upon a public highway while under the influence of alcoholic beverage, contrary to the provisions of R.S. 14:98. The information also charges that defendant is a third offender, specifying two previous convictions in November, 1973 for violations of R.S. 14:98. On June 19, 1975, defendant was tried by a twelve-person jury which found him guilty as charged. He was sentenced to four years at hard labor.

Defendant, through his retained counsel, was granted a motion for a suspensive appeal to this Court “on or before September 11, 1975, with Assignment of Errors due August 18, 1975 and designation of record due August 25, 1975.” Counsel did not file assignments of error or a designation of the record before or after the above dates, nor has he chosen to file a brief with this Court.

In criminal matters, appellate jurisdiction of this Court extends only to questions of law. La.Const. art. V, § 5(C) (1974). Article 920 of our Code of Criminal Procedure delineates the scope of our appellate review as follows:

“The following matters and no others shall be considered on appeal :
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

C.Cr.P. Art. 844 describes the procedure of assigning errors:

“The party appealing shall designate, in writing, those errors which are to be urged on appeal.
This assignment of errors shall be filed within the time specified by the trial judge.
The trial judge may submit such per curiam comments as he desires.”

The failure of trial counsel to designate specific assignments of error bars our review of possible trial errors; counsel’s failure to designate any assignments of error results in our not even having a portion of the trial transcript before us.

We are therefore limited on this appeal to a review of the pleadings and proceedings for discoverable error. C.Cr.P. Art. 920(2). We find none.

The conviction and sentence of David Gerald is therefore affirmed.


author: CALOGERO, J.,

text:
    Mrs. Lynden Howell CLAY v. Louis H. CLAY, Jr.
    No. 57356.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re Mrs. Lynden Howell Clay applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 322 So.2d 238.

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

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

CALOGERO, J.,

would grant this writ. Like the dissenting judge in the Court of Appeal, I do not agree that a showing of Mrs. Clay’s “inaction” after her then attorney was made aware of the execution of the documents is sufficient proof of ratification.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Jack E. LOTT.
    No. 56807.
    Supreme Court of Louisiana.
    Jan, 19, 1976.

      Darrell D. White, White & May, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, James E. Boren, Asst. Dist. Atty., for plaintiff-ap-pellee.
   DIXON, Justice.

Jack E. Lott was indicted on November 15, 1972 for the crime of murder in violation of R.S. 14:30, as that statute existed in 1972. A sanity commission was appointed and the court concluded, in December of 1972, that defendant was incapable of proceeding. Defendant was incarcerated at the East Louisiana State Hospital in Jackson. On May 8, 1975, after another sanity commission had determined that defendant had the present mental capacity to proceed, he was tried and convicted of murder in a jury trial by a verdict of eleven to one. He was subsequently sentenced to life imprisonment. On appeal, he relies on seven assignments of error. We find merit in Assignments Nos. 1, 2 and 3.

Assignment No. 1 complains that defendant could not have been convicted except by a unanimous verdict. Assignment No. 2 complains of the erroneous instruction to the jury venire that the trial judge could release the defendant if the jury found him not guilty by reason of insanity. Assignment No. 3 complained of the failure to sequester the jury. Each of these errors was based on the erroneous assumption that the procedural safeguards required in capital cases were not applicable to defendant.

As the voir dire commenced, the trial judge stated: “For the record, Mr. White, you are entitled to choose whether or not you wish to have a verdict which requires ten out of twelve or nine out of twelve. Which would you prefer ?” Defense counsel answered, “Ten out of twelve.” The State argues that this amounted to the waiver of the deficiency in the jury verdict.

A defendant may waive trial by jury in cases not capital and cases in which the punishment is not necessarily imprisonment at hard labor. C.Cr.P. 780. Before the 1974 amendment, C.Cr.P. 782 provided: “Except as provided in Article 780, trial by jury may not be waived.” After the amendment of C.Cr.P. 782 by Act 25 of Extra Session of 1974, that article provided in part: “Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.” The act further provided that defendants charged with offenses committed prior to December 31, 1974 shall be “tried in accordance with the jury provisions applicable at the time of the commission of the offense.” Article 342 of the Code of Criminal Procedure of 1928 provided: “Whenever the offense charged in the indictment is capital, or necessarily punishable with imprisonment at hard labor, the defendant cannot waive trial by jury; in all other cases he may elect to be tried by the judge alone.”

The statutory material demonstrates the clear legislative intent that a jury cannot be waived in a capital case, and that the only verdict which can convict in capital cases is a unanimous verdict of twelve jurors. In addition, in the case before us, we could not find the “waiver” to be either intelligent nor informed.

In State v. Holmes, 263 La. 685, 269 So.2d 207 (1972), a murder case, we considered the effect on our procedural law of the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which outlawed the death penalty as then applied. In Holmes we held that Furman did not change the classification of crimes in Louisiana, in spite of the unenforceability of the death penalty, and those crimes which the legislature had classified as capital offenses must continue to be tried by a jury of twelve, all of whom must concur to render a verdict.

In Holmes, supra, we also held that, in a murder trial, C.Cr.P. 791 required the sequestration of the jury.

The defendant in the instant case was tried for a crime that the legislature had classified as capital. Therefore, he was entitled to the safeguards afforded a defendant in a capital case. See State v. Flood, 263 La. 700, 269 So.2d 212 (1972); State v. Rhymes, 284 So.2d 923 (La.1973). Rhymes was decided after the 1973 amendment of the murder statute. In State v. Luquette, 275 So.2d 396 (La.1973), we decided that a defendant could not waive the requirement, in a murder case, that the jury be sequestered.

The legislature has taken no steps to indicate that the “classification” of certain crimes as capital offenses was not an intentional, convenient and efficient legislative grouping of procedural devices -to be employed in trials for offenses which the legislature had made punishable by death— a penalty no longer available at the time of this trial because of action of the United States Supreme Court.

Therefore, the jury should have been sequestered and the verdict should have been unanimous to convict. Further, the trial judge was in error when he informed the jury that the defendant could be released by the court if found not guilty by reason of insanity. In a capital case, the judge has no discretion; if the defendant is found not guilty by reason of insanity, he must be committed to a mental institution. C.Cr.P. 654.

Because we reverse and remand for a new trial, we will consider an issue raised on this appeal that might be raised at a second trial.

During the defendant’s case in chief, his counsel propounded the following question to a lay witness:

“Q I’ll state it in a different manner. Knowing Jack Lott as you do and being familiar with him and particularly around this time frame, the act that he is accused of committing on October 23, 1972, do you think he could distinguish between right and wrong ...”

The State objected, on the ground that the lay witness was not competent to express an opinion on the defendant’s sanity at the time of the offense, and, secondly, that the question, as phrased, was improper since it invaded the province of the jury.

The judge ruled that the lay witness can render an opinion as to whether the defendant was suffering from mental difficulties or not, but he would not allow the witness to voice his opinion on the ultimate issue of defendant’s sanity at the time of the offense.

In State v. Swails, 226 La. 441, 76 So.2d 523 (1954), we stated the general rule as to lay opinion evidence of insanity:

“The contention is not tenable. It is well settled in this State, and by the overwhelming jurisprudence of this country, that a non-expert witness, basing his testimony on facts and circumstances known to him, may be permitted to give opinion testimony touching upon the sanity or insanity of a person whose mental condition is at issue, provided the witnesses be shown to have had ample opportunity to observe the speech, manner, habits and conduct of such person. See State v. Lyons, 113 La. 959, 37 So. 890; State v. Montgomery, 121 La. 1005, 46 So. 997; State v. Genna, 163 La. 701, 112 So. 665; State v. Madena, 165 La. 474, 115 So. 661; State v. Neu, 180 La. 545, 157 So. 105; 20 Am.Jur. Sections 852, 853, and 32 C.J.S. Evidence § 507.” (76 So.2d 523, 528).

Nor can we say that the question, as phrased, is objectionable. While the ultimate determination of whether the defendant knew right from wrong is for the jury, we cannot say that it is error for the defendant to propound this question to his witness, especially since the prosecutor, on cross-examination, can certainly inquire into the witness’ understanding of insanity, both as a legal and a medical issue. We agree with the general evidentiary rule that such objections as the State raised go to the weight, rather than the admissibility, of the evidence. 7 J. Wigmore, Evidence in Trials at Common Law, §§ 1933-1938 (3d ed. 1940).

Accordingly, the conviction and sentence are reversed and set aside, and the case i remanded for a new trial.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Donald PHANOR.
    No. 56851.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      John G. Williams, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant was charged with and convicted of attempted rape. On appeal to this Court, he relies upon four assignments of error for reversal of his conviction and sentence. Finding no merit in these assignments, we affirm.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the lower court erred in allowing certain witnesses to identify defendant in court because the identifications had been tainted by previous illegal out-of-court identifications.

Defendant’s assignment of error is not properly before this Court. In some instances, a motion to suppress is a proper procedural device to bar identification testimony from a trial. See State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972). No motion to suppress was filed in the present case. In any event, Article 841 of the Louisiana Code of Criminal Procedure requires a contemporaneous objection at the trial to the admission of evidence as a basis of an assignment of error.

In brief, the State has pointed out that the defense made no such objection to the admission of the testimony. We have examined the record and find none. Hence, Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that, although the State gave prior notice of its intent to use certain inculpatory statements made by the defendant, the State introduced the statements without laying the proper foundation that the defendant made the statement voluntarily after being given the appropriate Miranda warnings. He relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The record reveals that the defendant was in a drunken condition when he' was returned to the scene of the crime. When the defendant saw a hat laying on the porch of the house, he said, “Give me my hat.” Miranda deals with custodial interrogation and does not prohibit the admission in evidence of a defendant’s spontaneous and unsolicited statements. State v. White, La., 321 So.2d491 (1975).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant’s third assignment of error is related to Assignment of Error No. 2. Here, he alleges that his condition at the time of arrest precluded the police giving him the Miranda warnings because he would not have understood them. He alleges that he was very drunk and did not and could not perceive what was happening to him. He therefore asserts that the police should not have taken him back to the scene of the crime and “placed [him] in a position of making the statement that was made on the porch of the house.”

The police apprehended the defendant near the scene of the crime, shortly after the crime had been committed. They properly returned him to the scene in order to ascertain whether or not the victim and a witness could identify him as the offender. See State v. Nance, La., 315 So.2d 695 (1975) and the authorities cited therein.

In dealing with confessions of intoxicated persons, we have held that intoxication which does not amount to mania at the time of the confession does not bar the confession. Intoxication is a factor to be considered by the jury in determining the weight to be accorded to a confession. State v. Berry, 50 La.Ann. 1309, 24 So. 329 (1898). Likewise, in State v. Alexander, 215 La. 245, 40 So.2d 232 (1949), we held that intoxication which had not reached the point of mania did not affect the admissibility of an otherwise • voluntary confession. Since intoxication short of mania does not bar a confession, we find no sound basis for using it to bar spontaneous utterances.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant alleges that the trial court erred in failing to grant a new trial on the basis of newly discovered evidence. In brief, defense counsel summarizes the evidence as follows:

“At a hearing on the motion for a new trial a witness by the name of Sevelia Lewis was called to testify. She stated that shortly following the trial Nellie Chatman and Hilda Dorsey told her that they did not know any of the Phanor boys and could not identify them. She further stated that Nellie Chatman told her on the phone that she thought it was Donald Phanor’s brother who attempted to rape her and not Donald Phanor himself. The testimony was corroborated by Sevelia Lewis’ husband Espeller Lewis.”

Article 851 of the Louisiana Code of Criminal Procedure provides in pertinent part:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
“The court, on motion of the defendant, shall grant a new trial whenever:
******
“(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;”

In passing upon a motion for new trial based on newly discovered evidence under the above article, the trial judge is accorded considerable discretion in evaluating the impact of the testimony upon the verdict. His ruling will be disturbed on appeal only when there is a clear showing of abuse of discretion. State v. Barfield, La., 292 So. 2d 580 (1974); State v. Jackson, 253 La. 205, 217 So.2d 372 (1968).

The testimony presented on the motion for a new trial is confusing at best. It relates to alleged inconsistent statements made by the victim as to the identity of the offender. At times, the two witnesses, husband and wife, seem'to testify that they received the information recited above over the telephone before the trial of the defendant, and at times they seem to testify that they received the information after the trial. It is unclear whether the victim stated over the telephone that she did not know who attempted to rape her or whether she simply stated that she did not know whose child he was.

We conclude that the trial judge did not abuse his discretion in denying the motion for a new trial.

Assignment of Error No. 4 is without merit.

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


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Roy Milton WILLIAMS.
    No. 56820.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      John B. Whitaker, Makar & Whitaker, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Roy Milton Williams was charged by indictment with second degree murder in violation of La.R.S. 14:30.1. After trial by jury, he was found guilty of manslaughter. Thereafter, he was sentenced to serve twelve years at hard labor. On appeal, he relies upon two alleged errors at trial for reversal of his conviction and sentence.

In his brief to this court, defendant contends that the trial judge erred in sustaining the state’s objection to his reading and citing excerpts from cases allegedly similar to the one at bar. He also alleges that the trial judge erred in permitting the state, over his objection, to question him on the witness stand as to whether he had any prior convictions.

We are, however, unable to review his arguments. Article 920 of the Code of Criminal Procedure sets forth the scope of appellate review :

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

La.Code Crim.P. art. 920 (1966), as amended, La. Acts 1974, No. 207, § 1, effective July 31, 1974. The Official Revision Comment to this article states :

The 1974 amendment to clause (1) basically conforms the article to the assignment of errors procedure. For errors to be included in the assignment of errors reviewable on appeal, the requisite procedures must have been followed. See Arts. 841, 842, 844, 845, 851, 859.

Defendant has not complied with the assignment of errors procedure. Specifically, he has failed to follow the provisions of article 844 requiring that the written designation of those errors that are to be urged on appeal be filed with the trial court. Consequently, the alleged trial errors of which defendant complains in his brief aré not before us for review. State v. Williams, 319 So.2d 405 (La.1975); State v. Donnell, 318 So.2d 3 (La.1975); State v. Shillow, 310 So.2d 103 (La.1975).

We have reviewed the record for errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence and have found none. La.Code Crim.P. art. 920(2) (1966), as amended, La. Acts 1974, No. 207, § 1, effective July 31, 1974.

DECREE

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

DIXON, dissents.


text:
    Jeannette Powe, widow of John C. BARNES, Individually and on behalf of her minor children, Caroline Elizabeth Barnes and John Christopher Barnes v. CITY OF NEW ORLEANS.
    No. 57353.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re City of New Orleans, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Application denied. On the facts found by the Courts below, La.App., 322 So.2d 821, there is no error in their judgment.

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


author: TATE, Justice.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Muryl WHITE, Defendant-Appellant.
    No. 56895.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The sole issue of- this appeal concerns the legality of the amendment, in the absence of his counsel, of the original sentence imposed upon the defendant.

The defendant was charged with perjury, La.R.S. 14:123, arising out of his testimony at his trial for another offense. On February 10, 1975, with the assistance of his counsel, he pleaded guilty to the perjury charge and was sentenced to three years, with one year to be served concurrently in the parish jail with the sentence imposed for the other offense. (The remaining two years were to be under supervised probation.)

On April 11, 1975, the defendant was brought back into court. His counsel was not present. At that time, the trial court corrected (or amended) the sentence so as to provide that the one year sentence in parish jail was a condition of his probation.

His counsel contends, with apparent force, that the effect of the amendment was to increase the period of mandatory confinement in the parish jail. (For one reason, due to hospitalization for surgery and post-surgery treatment, some of the concurrent sentence on the earlier charge was served in a hospital in another parish.)

The defendant contends that the amended sentence is invalid, since imposed upon him in the absence of and without the assistance of his counsel.

Our state constitution recognizes the right to the assistance of counsel at every stage of the proceedings against a person accused of a crime, La.Const. Art. 1, Section 13 (1974), unless this right is intelligently waived. Likewise, the constitutional right to the assistance of counsel provided by the Sixth Amendment to the federal constitution mandates the right (unless waived) to the assistance of counsel at every critical stage of the proceedings, including an initial or deferred sentencing. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); cf. also Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).

A defendant is entitled to the assistance of his counsel at his sentencing; a sentence imposed in the absence of counsel is invalid and must be set aside. State v. Austin, 255 La. 108, 229 So.2d 717 (1969). See also: State v. Chighizola, 281 So.2d 702 (La.1973); State v. Coody, 275 So.2d 773 (La.1973); State ex rel. Robinson, 257 La. 179, 241 So.2d 762 (1970). Cf., La.C.Cr.P. art. 514 and Official Revision Comment thereto.

The amendment or correction of sentence was imposed upon the present defendant without his counsel being present. By reason of the legal authority above set forth, an amended or corrected sentence imposed without the assistance of counsel is invalid, at least where it arguably affects unfavorably the rights of the accused or where a counsel might be of substantial assistance to the accused if present.

Accordingly, we annul and set aside the amended or corrected sentence of April 11, 1975, and we remand the case to the trial court for further proceedings in accordance with law and consistent with this opinión.

Sentence annulled; case remanded.


text:
    STATE of Louisiana v. Clinton FINDLEY.
    No. 57387.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re Clinton Findley on appeal from First Parish Court, Parish of Jefferson.

Appeal dismissed. La.Const.1974, art. V, Sec. 5(D). The right of Clinton Findley to apply for a writ review to this court is hereby reserved provided application is made within 30 days from the date of this dismissal.

DIXON, J.,

concurs in this procedure for the - reason that the record before us contains no assignments of error and we cannot ascertain the errors complained of.


text:
    Shelton RITTER et al. v. SOUTHERN FARM BUREAU CASUALTY INS. CO.
    No. 57237.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re Shelton Ritter, Et Al, applying for Certiorari, or writ of review, to the Court of Appeal Third Circuit, Parish of Evangeline.

Writ refused. On the facts found by the Court of Appeal, 321 So.2d 46, there is no error of law in its judgment. The issues are factual.

TATE, J.,

respectfully dissents. The Court of Appeal ignored the trial court’s finding of excessive speed, based on physical evidence and the length of distance, even after impact, it took to stop the defendant’s car. As the trial court held, the evidence presents a classic, last clear chance case, even assuming the decedent was negligent. A speeding motorist is not entitled to an open season on helpless pedestrians in the roadway. The trial court’s factual finding was far from manifestly erroneous. This Court should not abdicate its appellate function by characterizing a reversal as “factual” and therefore refusing to disturb a reversal which is unjustified.


text:
    STATE of Louisiana v. David BLANTON.
    No. 56845.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      James J. Gleason, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

David Blanton was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, he was found guilty as charged and was subsequently sentenced to serve six years at hard labor. On appeal, he relies upon two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 5

At the close of the judge’s general charge’ to the jury, defendant filed eight special jury charges with the court. The trial judge refused his request that he give the special charges. The denial of the request is assigned as error.

The pertinent law on special jury charges is set forth in article 807 of the Code of Criminal Procedure:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

At trial and in his per curiam, the judge stated that he refused to give the special charges because they were not timely filed and were included in- the general charge.

Since defendant filed the special charges after the beginning of argument, receiving them was discretionary on the part of the trial judge. La.Code Crim.P. art. 807 (1966). Defendant contends that the trial judge abused his discretion in refusing to give them, and to support this contention he relies on State v. LeBlanc, 297 So.2d 433 (La.1974). In that case, the prosecutor misstated the law during rebuttal argument, and a special charge was requested to correct the error. We stated that when the necessity for the special charge arises after argument has begun it is an abuse of discretion to refuse such a charge on the ground that it was not timely filed. We held, however, .that the judge’s abuse of discretion did not present a reversible error since the requested charge was partially covered by the general charge and the special charge itself was not wholly correct. „

Defendant does not allege that the state in argument or the judge in his general charge misstated the law applicable to the case nor did he make any other showing that the need for his special charges arose after argument had begun. Hence, LeBlanc is inapposite. Moreover, all but one of the requested special charges were clearly included within the general charge and therefore need not have been given. La.Code Crim.P. art. 807 (1966). The special charge that arguably was not given in the general charge dealt with the weight to be given the testimony of a witness who had been convicted of a prior felony. Because one of the defense witnesses was a convict, the special charge might have been pertinent to the case. However, included in the general charge were instructions on the credibility of witnesses and the weight to be given to their testimony. Therefore, while not specifically covered, this requested special charge was generally included in the general charge.

Under these circumstances, we cannot say that the trial judge abused his discretion in not receiving the defendant’s requested special charges at the close of his general charge to the jury. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the trial judge erred in denying his motion for a mistrial based on the denial of his request for special jury charges. For the reasons given in our disposition of Assignment of Error No. 5, this assignment of error has no merit. .

DECREE

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

      . Defendant perfected six assignments of error in the trial court, of which only two were briefed and argued before this court on appeal. The remaining assignments of error are therefore considered abandoned. State v. Carlisle, 315 So.2d 675 (La.1975).


text:
    CITY OF BATON ROUGE v. Wilford MITCHELL.
    No. 56666.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      P. Raymond Lamonica, Supervising Atty., LSU Clinical Legal Education Program, Baton Rouge, S. Joseph Liberto, J. Terry Ryder, Legal Interns, for plaintiff-relator.
    Joseph A. Perrault, Jr., Michael J. Uter, Baton Rouge, for defendant-respondent.
   DIXON, Justice.

We granted writs in this case to review a ruling by the Baton Rouge City Court that a police officer cannot administer a Photo-Electric Intoximeter (PEI) Test to a motorist he suspects is under the influence of alcohol, unless he first issues a citation (or arrests him) for another, distinct driving offense.

On May 26, 1974 Officer Daniel Cosse of the Baton Rouge City Police observed a vehicle, driven by Wilford Mitchell, enter an intersection after the traffic signal had changed from amber to red. The vehicle came to an abrupt stop approximately one-fourth to one-half way into the intersection. Officer Cosse, after the light turned green, pulled the Mitchell vehicle over to the side of the road to investigate.

Officer Cosse asked the defendant whether he had seen the light change to red, and when Mitchell had trouble understanding his question, he asked to see his driver’s license. Mitchell had trouble understanding this request. At the time, Mitchell’s speech was slurred and difficult to understand, Cosse testified. Additionally, there was an odor of alcohol on the defendant’s breath. Officer Cosse then asked the defendant if he would submit to a PEI test, which he did. After the test, Mitchell was cited for driving while intoxicated, in violation of R.S. 14:98. No citation other than that was issued.

At trial the State attempted to introduce into evidence the results of the PEI test. The trial judge sustained the defendant’s objection, on the grounds that a proper foundation had not been laid for the administering of the test. It was the trial judge’s opinion that there must be an arrest for a traffic violation other than driving while intoxicated as a prerequisite for administering the test. We cannot agree.

R.S. 32:661 (A) provides:

“Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine or other bodily substance for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.”

The language dispositive of the defendant’s contention in the instant case is “if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages.” (Emphasis added).

R.S. 14:98(A) provides:

“Operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates.”

C.Cr.P. 201 defines arrest:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

It is clear to us that the defendant, after Officer Cosse heard his slurred speech and smelled alcohol on his breath, was placed under arrest, within the meaning of C.Cr. P. 201, for the offense of driving while intoxicated. Thereafter, the PEI test was given, pursuant to R.S. 32:661 (A).

However, it is crucial that for Officer Cosse to arrest the defendant for the offense of driving while intoxicated before the PEI test is administered, he must have had probable cause, independent of the PEI test result, to arrest for a violation of R.S. 14:98. Since the trial of the defendant has not yet been completed, such a determination need not be made at this time.

It is important to recognize that R.S. 32:661 et seq. function as rules of evidence, not as substantive criminal laws. In State v. Jones, 316 So.2d 100, 103 (La.1975), we stated:

“ . . . bearing in mind that the results obtained by use of these methods determine whether the presumptions contained in La.R.S. 32:662 come into play, and thus relieve the State of the burden of otherwise proving legal intoxication.. . ."

Again, in State v. Jones, supra, at 103, we noted:

“. . . test results establishing legal intoxication dispense with the State’s obligation to affirmatively meet its burden of proving the ‘intoxication’ element of the crime beyond a reasonable doubt. . ."

While this court has not yet faced the issue now squarely presented, courts in other jurisdictions, with statutes similar to R.S. 32:661 et seq., have treated this issue.

In Bowlin v. State, 330 N.E.2d 353 (Ind.App.1975), the Indiana court held that an officer could arrest a person for driving while intoxicated, before administering any tests, if he had probable cause to believe the driver was under the influence of alcohol. The court stated, at 355:

“Here the facts known to and observed by the officer were sufficient for a prudent man to believe that Bowlin had been driving under the influence. Whether the evidence obtainable would ultimately support a conviction was not the issue. There was probable cause.”

In Massaro v. Dolan, S35 P.2d 1136 (Colo.App.1975), the Colorado court held that an officer, with probable cause to arrest a suspect driver for driving while intoxicated, could do so, and then request the driver to submit to chemical tests. In the Massaro case the court stated that Massa-ro’s manner of driving, along with his slurred speech, bloodshot eyes and odor of alcohol, taken together, justified the arrest and subsequent request to take the chemical tests.

The purpose of the PEI and similar tests is to provide a standard for the determination of intoxication, based on established medical criteria. Thus, the presumption of intoxication established in R.S. 32:662(c) relieves the State of proving by other, presumably less reliable, evidence, that the defendant was in fact intoxicated. It would be inconsistent with the purpose of the tests to hold, as the trial court did, that an arrest or citation for an offense other than driving while intoxicated is a prerequisite for the administering of the test.

Accordingly, the ruling of the trial court is reversed, and the case is remanded for trial.


text:
    STATE of Louisiana v. Melvin MAYES.
    No. 56753.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Val K. Scheurich, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant, Melvin Mayes, was convicted after a trial by jury of the distribution of marijuana (La.R.S. 40:966). He was sentenced to nine years imprisonment and fined $2,500. From his conviction and sentence, the defendant appeals alleging two errors.

At approximately 2:30 p. m. on April 11, 1974, the defendant, who was .employed as a. security officer at Charity Hospital in New Orleans, approached undercover agent Gary McKee in the hallway of the hospital. The defendant inquired of McKee whether he (McKee) wanted to buy some “stuff”. McKee inquired “what stuff?” The defendant replied marijuana. McKee agreed and gave the defendant $30 and arranged to meet the defendant later that night for the delivery. The meeting took place in the fourth floor men’s rest room of the hospital. Present, although hiding, was Sergeant Sterling, an investigator for the State of Louisiana. The defendant then delivered to McKee the marijuana (two “lids”) and left the rest room. McKee then handed the marijuana to Sergeant Sterling. At trial, it was stipulated that the package contained marijuana.

Assignment No. 1

The defendant contends that on cross-examination, ■ in order to test McKee’s credibility, he should have been allowed to question McKee as to the names of other allegedly corrupt (dealers in narcotics) security officers at Charity Hospital and the source of supply of the defendant’s marijuana. The trial court sustained the prosecution’s objections to the testimony, the former on the grounds of irrelevancy and the latter on the grounds of immateriality.

It is well-settled law that the defense should be allowed substantial freedom in cross-examining witnesses for the state. Such freedom may, however, be restrained by the trial judge when the questions asked are irrelevant or immaterial to the case. '

Who were the other allegedly corrupt officers was in fact irrelevant to the defendant’s guilt or innocence. Such evidence is therefore inadmissible under La. R.S. 15:435, 441, and 442. The source of the defendant’s marijuana is similarly irrelevant. The fact is that the defendant had possession of the marijuana and delivered it to McKee. The crime is established. La.R.S. 40:966.

Even assuming that the defense was testing McKee’s credibility, it is difficult to understand the relevancy of such questions to the issue of credibility. That is, the possibility that McKee was conducting an undercover operation and had other security officers under observation and whether McKee knew who was supplying the defendant with the marijuana are not matters which are relevant to the fact that the defendant did deliver to McKee two “lids” of marijuana. This restraint upon the liberty of cross-examination was harmless. La.Code Crim.Proc. art. 921.

Assignment No. 2

As the second assignment of error, the defendant contends that a sentence of nine years and a fine of $2,500 is cruel and unusual punishment fdr a first offender.

Considering that defendant was employed as a security officer at Charity Hospital and was caught in the act of selling marijuana there, it cannot be said that the sentence is cruel and unusual. The sentence is within the limits set by the statute. See State v. Williams, 288 So.2d 319 (La.1974).

The conviction and sentence should be affirmed.


text:
    STATE of Louisiana v. James Lee THOMAS.
    No. 56840.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      William L. McLeod, Jr., McLeod & Dow, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., A. J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, James Lee Thomas, was charged by bill of information dated February 4, 1975 with the crime of simple burglary in violation of R.S. 14:62. He entered a plea of not guilty and, after a jury trial, was found guilty and subsequently sentenced to four years imprisonment. On appeal, he relies on three assignments of error.

Assignment of Error No. 1

On the first day of the proceedings, the defendant appeared before the jury in “prison garb,” i. e., gray coveralls. He contends that this appearance presented him to the jury in an unfair and prejudicial light, effectively depriving him of a fair trial. We cannot agree.

We initially note that no objection was raised at the time of the occurrence, nor did the defendant request a recess in order to change clothes. He appeared in civilian clothes for the remainder of the trial.

An accused may insist that he be brought into court with the appearance, dignity and self-respect of a free and innocent man. However, one asserting the deprivation of such right must establish a deprivation by clear and convincing evidence. State v. Kinchen, 290 So.2d 860 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972).

In the instant case, there is no showing that any juror would identify the gray coveralls as prison garb. On voir dire examination, the defendant’s attorney questioned each juror as to whether the defendant’s clothing would prejudice their decision. Each responded negatively. Given these facts, and in view of the fact that no-objection was made at the time the defendant was brought into court, we cannot say that the defendant was so prejudiced by this occurrence that he did not receive a fair trial.

Assignment of Error No. 1 is without merit.

Assignment of Error No. 2

During argument over an objection to opinion evidence raised by defense counsel, the prosecutor stated, “he can state the value, approximate value of the merchandise that the defendant was stacking up to haul out of there.” Defendant contends this constitutes an impermissible comment on the evidence.

Defense counsel did not object to this remark by the prosecutor at the time it was made. This court has consistently held that in order for prejudicial remarks by the prosecutor to be appealable, a timely objection must be raised when the alleged prejudicial statement is made. Since no timely objection was urged, we should not consider this alleged error. State v. Jones, 315 So.2d 650 (La.1975); State v. Watley, 301 So.2d 332 (La.1974); C.Cr.P. 841. Nevertheless, there is no merit in Assignment No. 2; the prosecutor is not prohibited from “commenting on the evidence,” and the defendant was not unfairly prejudiced.

Assignment of Error No. 3

The defendant objected to the introduction into evidence of a bank money pouch found on the defendant by the arresting officers. Defendant contends that the State failed to establish the chain of custody.

One of the arresting officers testified that a First National Bank money pouch, containing about two dollars in pennies, was found on the defendant when he was arrested at the scene of the burglary. The pouch was then turned over by the officers to the Identification Bureau until the trial. The pouch found on the defendant was ripped, and the one introduced into evidence was similarly ripped.

A sufficient foundation for the introduction of the pouch was laid. This court has consistently held that, for the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the crime. Lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the jury. State v. Kilson, 311 So.2d 887 (La.1975); State v. Sibley, 310 So.2d 100 (La.1975); State v. Hayes, 306 So.2d 705 (La.1975).

We conclude that the evidence herein clearly establishes a chain of custody of the money pouch, and thus it was properly received into evidence.

Assignment of Error No. 3 is without merit.

Accordingly, the conviction and sentence are affirmed.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Johnny Paul REDFUD.
    No. 56776.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      James A. Wayne, Donaldsonville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant Redfud was convicted of distribution of heroin, La.R.S. 40:966, subd. A(l), and sentenced to life imprisonment. Although defendant submitted fourteen assignments of error to the trial court, on appeal he presented written and oral argument on but six of these assignments. The remainder of defendant’s assignments were submitted without argument or citation of authorities and, therefore, will be considered to have been abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENTS OF ERROR NOS. 1 and 3

Assignment no. 1 deals with defendant’s pre-trial motion to quash. ■ Although this written motion contained four grounds, only two were argued when the motion was heard by the trial court. Both concern the alleged failure of the State to answer bills of particulars properly. Assignment no. 3 is discussed here because it it also concerns the alleged failure of the State to answer bills of particulars.

Defendant filed a motion for a bill of particulars propounding the following question :

“How many person[s] witnessed] the defendant sell or deliver narcotics to the accuser ?”

The trial court sustained the State’s contention that it was not required to provide such information. Defendant then amended the question to read:

“How many persons, informers or agents witnessed the defendant sell or deliver narcotics to an agent or informer?”

Again, the State’s refusal to answer was sustained.

The court may require the district attorney to furnish a bill of particulars setting out more specifically the nature and cause of the charge against the defendant. C.Cr.P. art. 484. But defendant’s requests go beyond the nature and cause of the charges and amount to a request for pretrial discovery, which is not available to the defendant under our criminal procedure. State v. Kado, 300 So.2d 461 (La.1974) and cases cited therein.

Defendant also asked another question, which was ultimately amended to read:

“What kind and quantity of narcotics were found on the defendant at the time of his arrest?”

The trial court correctly sustained the State’s refusal to answer. Defendant was charged with having distributed heroin some two months prior to his arrest. Hence, substances in his possession at the time of the arrest were not relevant to the nature and cause of the charge against the defendant.

Defendant further complained that the State had never answered the Motion to Quash. There is no requirement by law that such an answer be filed.

These assignments have no merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment defendant complains of the failure of the court to give the accused a preliminary examination. When the motion for a preliminary examination is made before the finding of the indictment, the court is mandated to grant it in felony cases. However, when it is made after the finding of an indictment, the matter is discretionary. La. Const. (1974) Art. 1, Sec. 14. After the defendant has been indicted by the grand jury, the court may rescind an order for a preliminary examination. La.Code Cr.P. art. 292 (amended by Acts 1974, Extra Session No. 16 Section 1, effective January 1, 1975).

The record contains no motion for a pre-Jiminary examination. If one was filed it must have been after the defendant was arrested on January 16, 1975. However, it is unclear whether it came before or after the indictment which was found on February 28, 1975. If defendant’s motion for a preliminary examination came after the indictment, he had no right to such an examination. Art. 1, Sec. 14, La.Const. (1974); C.Cr.P. art. 292. If the motion occurred prior to the indictment, the existence of probable cause was conclusively determined when a- valid indictment was returned by a properly constituted grand jury. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Moreover, without a showing that the failure to afford defendant a preliminary examination resulted in specific prejudice leading to an unfair trial, the issue became moot after a verdict of conviction was rendered. State v. Pesson, 256 La. 201, 235 So.2d 568 (1970). Therefore, this assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 4

Defendant complains in this assignment of error of the trial court’s refusal to exclude for cause one of the jurors who was empanelled to hear his case. The basis for the challenge was that the juror’s father had already been selected to serve on the jury and that the relationship between the two jurors could possibly cause prejudice to the defendant.

La.C.Cr.P. art. 797 furnishes an exclusive list of grounds upon which the defendant may base a challenge for cause of a prospective juror. Filial relationship between two jurors does not constitute one of the grounds. Nor do we find that having a father and son on the same jury so endangers an accused’s right to a fair trial as to deny him the fundamental fairness required by due process.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 5

Mrs. Eva Hanson, a civil service employee working for the Louisiana State Police, was called for jury duty, questioned on voir dire and accepted by both the State and the defendant. For the first time, in this assignment of error, defendant complains that “[t]he failure of the State to disqualify” Mrs. Hanson constituted reversible error.

There is no requirement that either the State or the defendant challenge any juror. See La.C.Cr.P. arts. 795-800. A juror cannot be challenged for cause by the State or the defendant after having been accepted by the challenging party, unless the ground for the challenge was not known by the challenging party prior to acceptance. C. Cr.P. art. 795. Since defendant accepted the juror, with knowledge of the possible ground for challenge, he cannot complain that the juror was not impartial or subject to being influenced through a relationship by employment.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment defendant contends the trial court erred in denying his motion for a mistrial based on a prospective juror’s comment that he was not certain but he thought he had seen defendant at a penal institution at some time during his ten years of 'service as a correctional officer. He was peremptorily challenged by the State after this comment was made. The trial court refused to grant a mistrial but did admonish the jury that it was tO’ ignore the comment by' the prospective juror.

Had the comment been made by the judge, district attorney, or a court official it ;may have constituted, mandatory grounds for a mistrial. C.Cr.P. art. 770(2). However, when such a remark or comment is made by a witness or person other than the judge, district attorney, or a court official, the court may grant a mistrial only if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. C.Cr.P. art. 771(2).

A mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Whitley, 296 So.2d 820 (La.1974). We find no abuse of discretion in the trial court’s action in this matter, and conclude that the drastic remedy of mistrial was not warranted in light of the admonition given by the court that the jury disregard the comment by the prospective juror.

Thus, this assignment is without merit.

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


author: SUMMERS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Leon CURRY.
    No. 56729.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Vincent Wilkins, Jr., Acting Director, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Bryan E. Bush, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant, Leon Curry, was convicted on a charge of armed robbery. La.R.S. 14:67. He was sentenced to imprisonment at hard labor for fifty years, to run consecutively with a sentence previously imposed. On this appeal he contends three errors in the proceeding support the contention that the conviction and sentence should be reversed.

Sometime around 7:30 on the morning of August 2, 1974, Curry entered the One Hour Martinizing Cleaners on North Acadian Drive in the city of Baton Rouge. He was dressed in a pair of cut off pants, sneakers, a green shirt, and a red bandanna that covered the lower half of his face. He pointed a pistol at the woman who was employed as a clerk there and ordered her to lay on the floor, threatening to kill her if she refused. Next he rifled the cash register, emptying it of approximately $50. The clerk was also made to surrender her purse from which Curry took $1.00. He then ordered her to lock the front and rear entrance doors to the establishment, and forced her, on threat of being killed, to undress in the rear room where he raped her. She was then ordered to remain where she was. Following this he made good his escape.

Despite the mask that Curry wore, the victim recognized him by his voice, his hair, his forehead and eyes. On several previous occasions he had come into the shop and once signed a ticket to get clothes.

After Curry left, the victim called the police. When they arrived she told them she had been raped by Curry.' Police investigated and took photographs of the area.

Assignment No. 4

During the trial Detective O’Brien was shown photographs referred to as Exhibits 1-4. He testified that he had seen the photographs before and the area they portrayed. He said they reflected the conditions of the area at the time he investigated the case. He also said Exhibit 4 represented the counter in the cleaners where they attempted to lift fingerprints. At this point defense counsel objected that a foundation had not been laid to show who took the photographs.

Whereupon, O’Brien testified that he ordered the photographs taken; they reflected what he saw at the time he investigated the case; and he was there when they were taken. When the State’s attorney offered the photographs in evidence, defense counsel again objected that the offering was premature, the photographs had no probative value, and they would tend to mislead the jury at some later point when they were asked to view the photographs.

The objection was overruled, the photographs were admitted into evidence, and this ruling is assigned as error.

In brief to this Court defense counsel argues that the photographs could not be introduced until .there was “some testimony as to their contents.” Relying upon Section 214 of McCormick on Evidence 2d, he argues that a photograph is admissible as a “graphic portrayal of oral testimony” and therefore it cannot be admitted without evidence describing its content.

Pertinent parts of the rule relied upon provide that a photograph

“. . . becomes admissible only when a witness has testified that it is a correct and accurate representation of relevant facts personally observed by the witness. [The witness] need only know about the facts represented or the scene or objects photographed and once this knowledge is shown he can say whether the photograph correctly and accurately portrays these facts.”

According to our review of the testimony the requirements of the rule in McCormick have been met. This assignment has no merit.

Assignment No. 9

When Police Detective O’Brien was called by the State as a witness on its case in chief, the State’s attorney asked that the jury be retired so that a foundation for the voluntariness of a statement made by Curry could be established. Out of the presence of the jury, O’Brien testified that Curry told him that he, Curry, knew of the laundry in question, that he had been there before, but that he knew nothing of a rape or robbery. At that time the trial judge ruled that Curry’s statement was exculpatory and voluntarily made.

When the jury was returned, the State’s attorney asked O’Brien what Curry said. There was no objection by defense counsel. O’Brien answered:

“He told me that he knew of the place that was in question—the laundry, that he had been there before; and that he had conducted business with the laundry, having his clothes cleaned there; that he did not know anything about a rape or robbery.”

On cross-examination, O’Brien was again asked, this time by defense counsel, what it was that Curry had told him. O’Brien repeated his previous testimony. Later, defense counsel objected to the introduction of State Exhibit 8, the form containing the waiver of rights from which Curry had been read his Miranda warnings. He seeks to use this objection as a vehicle to advance his contention under this assignment of error. According to that contention, the quoted statement given by him to the police immediately after his arrest was inadmissible at the trial because the State failed to give notice prior to the opening statement aS required by Article 768 of the Code of Criminal Procedure.

The contention has no merit. The statement alluded to was exculpatory and it was received in evidence without objection. La.Code Crim.Proc. art. 841.

Assignment Nos. 2, 5, 11,13, 16, 19, 20 and 21

A series of defense objections to any evidence of, or reference in argument to, the rape form the basis of these assignments of error.

Initially the inquiry is to determine the relevancy of the evidence of rape to this prosecution. La.R.S. 15:435.

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
“Facts necessary to he known to explain a relevant fact, or which support an inference raised by such fact, are admissible.” La.R.S. 15 :441.

The central and crucial issue of this trial was the identity of the accused. The issue was sharply formed when defendant denied that he took part in the robbery and when he called Joyce Simmons, his common-law-wife, who testified that he was with her all morning long on August 2, 1974, and therefore he could not have been the party who committed the crime. It is undisputed, also, that when the robber entered the laundry, he wore a mask to conceal his identity.

This evidence necessarily called the victim’s identification of the accused into question. It was important and relevant, therefore, for the State to show the facts and circumstances which would lend reliability and credibility to her identification testimony. To do this, testimony that Curry had come into the laundry on previous occasions and had conversations with her in the past was both relevant and material.

Another and more impressive incident which enabled her to identify this defendant was the rape and the circumstances surrounding its consummation. While the rape occurred she was, of course, in the closest proximity to Curry. This gave her ample opportunity to better observe him and add to the knowledge she already possessed of his physical characteristics and identity. This evidence assumed particular relevance and probative force for it was part of the same transaction, identical in time and place, as the robbery. For the robbery was not complete as such until the accused left the scene—that is to say, turning aside to the rape was part of the entire transaction which began with Curry’s entry into the shop and ended with Curry’s departure from the scene with the money.

Proof of identity is accepted as one of the ultimate purposes for which evidence of other criminal conduct will be received. State v. Hicks, 180 La. 281, 156 So. 353 (1934); McCormick on Evidence 2d p. 451; 1 Wharton, Criminal Evidence § 235 (12th ed. 1955); 22A C.J.S. -Criminal Law § 684. Unquestionably, the fact that the accused sexually assaulted the victim of the robbery logically establishes the probative worth and reliability of the victim’s identification of her assailant and, therefore, the identification of the robber.

The victim of such a rape is unlikely to attempt to prevent further steps in the theft after such a humiliating and degrading experience. Surely, if the accused had robbed the victim and hit her on the head afterwards to make good his escape, evidence of that fact would be admissible. The rape played the same part in this robbery. The experience deterred the victim from making an earlier report of the robbery thereby enabling Curry to make good his escape. Thus, aside from being relevant to evidence of identity, the rape was relevant and material to corroborate the victim’s testimony to the effect that all phases of the armed robbery were committed by force and intimidation.

In addition to the relevance of the evidence of rape to the question of identification, force and intimidation, evidence of the rape was also part of the res gestae. By clear and explicit statutory enactments, what forms part of the res gestae is always admissible in evidence.

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What, forms any part of the res gestae is always admissible in evidence.1’ (emphasis added). La.R.S. 15:447.
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or im- ■ mediate concomitants of it, or form in conjunction with it one continuous transaction.” La.R.S. 15:448.

As the factual narrative discloses, the rape was inseparably connected with the robbery in time and place; it was indeed an “immediate concomitant of it,” and it “form[ed] in conjunction with it one continuous transaction.” When this fact is accepted, as it must be, every element of' the definition of res gestae is satisfied. Without evidence of the rape the complete story of the crime could not be told.

The issue presented by this assignment has been decided by this Court in State v. Hatch, 305 So.2d 497 (La.1975) and State v. Williams, 263 La. 755, 269 So.2d 232 (La.1972). When evidence of other crimes from the one charged are so closely linked as to form part of the res gestae the evidence may be received under the authority of Sections 447 and 448 of Title 15 of the Revised Statutes. State v. Clark, 220 La. 946, 57 So.2d 904 (1952). Other persuasive and respectable authority holds that when a collateral offense, or extraneous offense as it is sonjetimes called, forms part of the res gestae, evidence of it is admissible. State v. Jugger, 217 La. 687, 47 So.2d 46 (1950), and cases cited therein.

These assignments of error are without merit.

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

DIXON, J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice

(concurring).

I concur in the affirmance of the conviction. However, with respect to Assignment No. 9 I do not believe that the statement in question was entirely “exculpatory.”


text:
    STATE of Louisiana v. Victor LINKLETTER and Kathleen McKenzie.
    No. 57425.
    Supreme Court of Louisiana.
    Jan. 27, 1976.
   In re: Victor Linkletter and Kathleen McKenzie applying for writs of c\rtiorari, prohibition, mandamus and stay order.

Writ denied. We find no error in the ruling.


text:
    Walter SHELTON and Rosa Lee Shelton v. AETNA CASUALTY AND SURETY COMPANY.
    No. 57283.
    Supreme Court of Louisiana.
    Jan. 28, 1976.
   In re: Rosa Lee Shelton, Iris S. Ritter, Barney L. Shelton and Lois S. Matherne, applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of E. Baton Rouge, 322 So.2d 308.

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


text:
    William H. BAKER and Bobby L. Culpepper v. Honorable Edwin W. EDWARDS et al.
    No. 57346.
    Supreme Court of Louisiana.
    Jan. 28, 1976.
   In re: William H. Baker and Bobby L. Culpepper applying for writ of certiorari, prohibition and mandamus.

Writ refused. The showing made is insufficient to warrant the exercise of our jurisdiction or the interference with the orderly procedures of the courts below.


text:
    STATE of Louisiana ex rel. George FOURNETTE v. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57297.
    Supreme Court of Louisiana.
    Jan. 28, 1976.
   In re: George Fournette applying for writ of mandamus.

Writ denied. The matter is moot.


text:
    STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS v. Wilfred SOILEAU.
    No. 57394.
    Supreme Court of Louisiana.
    Jan. 28, 1976.
   In re: Wilfred Soileau, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline, 323 So.2d 162.

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


text:
    STATE of Louisiana ex rel. Charles Edward SMITH v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57245.
    Supreme Court of Louisiana.
    Jan. 28, 1976.
   In re: Charles E. Smith, applying for writ of habeas corpus.

Writ refused. The showing made is insufficient to warrant the exercise of our jurisdiction.


text:
    Susan Johnson, wife of Charles E. WELSH v. Charles E. WELSH.
    No. 57312.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Charles E. Welsh, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaquemines, 322 So.2d 352.

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


text:
    Flossie B. TAYLOR and Charles D. Heck, Jr. v. MFA MUTUAL INSURANCE COMPANY.
    No. 57332.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: MFA Mutual Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Winn, 322 So.2d 842.

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


text:
    SERVI-CLEAN INDUSTRIES, INC. v. TONTI MANAGEMENT CORPORATION.
    No. 57341.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Servi^Clean Industries, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 322 So.2d 445.

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


text:
    LYKES BROTHERS STEAMSHIP CO., INC. v. F. C. DOYAL, Jr., Administrator of the Department of Employment Security and Melford Swain, Jr.
    No. 57351.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Joseph R. Gerace, Adm. of the Department of Employment Security, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 299 So.2d 477.

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


text:
    STATE of Louisiana ex rel. Clarence Willie JONES v. John RABALAIS, Custodian of Records, Louisiana State Penitentiary.
    No. 57208.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Clarence Willie Jones applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. No merit in the application.


text:
    STATE of Louisiana ex rel. George PORTER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57242.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: George Porter, applying for writ of habeas corpus.

Writ denied. The showing made is insufficient to warrant exercise of our supervisory jurisdiction. Review of transcript at time of applicant’s guilty plea indicates plea was knowingly and voluntarily made after proper Boykinization.


text:
    STATE of Louisiana v. Rickey B. BIZETTE.
    No. 57360.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Rickey Bizette applying for writs of certiorari, prohibition and mandamus.

Granted. (See Order.)

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Daniel W. LeBlanc Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of February, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.-

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 21st day of May, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Allen HAMMLER.
    No. 57276.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: State of Louisiana through District Attorney, Parish of Orleans applying for writs of certiorari, mandamus and prohibition.

Writ denied. Based upon the record herein, the trial judge did not abuse the discretion vested in him.


text:
    Leaster P. DOTSON, Tutrix of her minor child, Isaac Kinchen, Jr. v. The CONTINENTAL INSURANCE CO.
    No. 57284.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Leaster P. Dotson, Tutrix of Her Minor Child, Isaac Kinchen, Jr. applying for Certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 322 So.2d 284.

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


text:
    Frank B. WOOD et al. v. Bessie B. Mills MORVANT et al.
    No. 57289.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Frank B. Wood, Frank B. Wood, Jr. and William C. Garrett applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    PARISH OF EAST BATON ROUGE v. Joseph CANTU.
    No. 57291.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Joseph Cantu applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 902.

Writ denied Under the facts found, there is no error of law.


text:
    STATE of Louisiana ex rel. David WELCH v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57295.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: David Welch applying for writ of habeas corpus.

Writ denied on the basis of the eviden-tiary hearing.


text:
    STATE of Louisiana ex rel. Karl ARMSTRONG v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57296.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Karl Armstrong applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ refused. Under the allegations, relator is not entitled to the relief sought.


text:
    STATE of Louisiana ex rel. Arthur GUILLORY v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57309.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Arthur Guillory applying for writ of certiorari.

Application denied; on the basis of the evidentiary hearing, we find no merit in the allegations of this petition.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57311.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Prentice Robinson, Jr., applying for writs of habeas corpus, certiorari, prohibition and mandamus.

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


text:
    T. Scott McVEA et al. v. BOARD OF DIRECTORS OF the FEDERAL INTERMEDIATE CREDIT BANK.
    No. 57319.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: T. Scott McVea, Percy Carruth, E. L. Green, Malcolm Wascom, J. M. Holloway and William M. Morgan, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 322 So.2d 448.

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


text:
    Janice F. RUSSO v. Lemle J. GUILLORY, Jr., et al.
    No. 57320.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Lemle J. Guillory, Jr., Lake Grain Co., Inc. and Interstate Fire and Casualty Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 322 So.2d 233.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Charles FINLEY.
    No. 57322.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Charles Finley, applying for writs of certiorari, mandamus and prohibition.

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


text:
    James R. SIMS v. Murphy R. TOLAR, Jr., and Zurich Insurance Co.
    No. 57330.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: James R. Sims applying- for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 322 So.2d 318.

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


text:
    Lester Mack HENNING v. Murphy R. TOLAR, Jr., and Zurich Insurance Company.
    No. 57331.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Lester Mack Henning, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 322 So.2d 320.

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


text:
    Mrs. Camille Silvera MOLERO, Testamentary Executrix of the Succession of Manuel Molero v. Perry R. BASS et al.
    No. 57338.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Perry R. Bass, Bass Brothers Enterprises, Inc. and Richardson Oils, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaquemines. 322 So.2d 452.

Writ denied. The judgment is not final.


text:
    STATE of Louisiana v. Patsy Ann JACK.
    No. 57345.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Patsy Ann Jack applying for remedial writs.

Writ denied. Since the single assignment of error presents nothing for our review, the ruling of the trial judge is correct.