author: BOYER, Judge.

text:
    FORD MOTOR COMPANY, Petitioner, v. Louis EDWARDS and Judith Edwards, his wife, Respondents.
    No. KK-12.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1978.

      Rutledge R. Liles of Howell, Howell, Liles & Braddock, Jacksonville, for petitioner.
    William C. Gentry of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for respondents.
   BOYER, Judge.

Ford Motor Company petitions for review of an interlocutory order granting in part and denying in part its motion for protective order. The Company sought relief below from an order requiring production of certain records requested by respondent in connection with his product liability suit against Ford. Ford claims here that the trial court departed from the essential requirements of law in failing to require respondent to reimburse or indemnify it for all of the costs involved in the production of the records. After a thorough review of the record, we find no departure from law sufficient to give us jurisdiction, and deny the petition.

The o.rder of which petitioner seeks review required that respondent pay only the costs of copying the requested documents ($1,269.00) or to post bond indemnifying Ford for that amount. Ford had requested $9,581.00, its estimate of the amount necessary to locate, gather, examine, transport, and copy the requested files.

Ford urges here as it did below that it is unduly oppressive and burdensome to require it to finance the production of respondent’s extensive discovery request. It relied heavily on the case of Schering Corporation v. Thornton, 280 So.2d 493 (Fla. 4th DCA 1973). In that case, the trial court denied the defendant’s motion for protective order. Schering Corporation had argued that the cost of producing the requested documents, approximately $4,000.00, would be unduly oppressive and burdensome. The Fourth District Court of Appeal agreed, granting the petition for certiorari and quashing the order denying the protective order. In reaching that decision, however, the court made the following statement:

“We do not here attempt to delineate the point at which the burden becomes unreasonable, and indeed, it must necessarily be a ease by case decision under the applicable circumstances.” (280 So.2d at page 493)

It is not every error in the court below which creates common law certiorari jurisdiction in this court. The petitioner must demonstrate that the order was rendered by the court in excess of its jurisdiction or does not conform to the essential requirements of law and may cause material injuries through subsequent proceedings for which remedy by appeal will be inadequate. West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975); Meiklejohn v. American Distributors, Inc., 210 So.2d 259 (Fla. 1st DCA 1968); Boucher v. Pure Oil Company, 101 So.2d 408 (Fla. 1st DCA 1957); Brooks v. Owens, 97 So.2d 693 (Fla.1957).

When a District Court of Appeal is called upon to review by certiorari a judgment of a circuit court sitting in its appellate capacity, it is limited to a determination of whether the lower court has exceeded its jurisdiction or has otherwise deviated from the essential requirements of law. Dressner v. City of Tallahassee, 164 So.2d 208 (Fla.1964); Cribbs v. State, 237 So.2d 297 (Fla. 1st DCA 1970); Coffman v. State, 292 So.2d 608 (Fla. 4th DCA 1974). The authorities make it clear that a District Court of Appeal may not on certiorari sought to a circuit court in the exercise of its appellate jurisdiction reevaluate or weigh the evidence. Grandin Lake Shores Association, Inc. v. Underwood, 351 So.2d 1131 (Fla. 1st DCA 1977). This court in Grandin Lake, supra, held that the mere fact that a circuit court in its appellate capacity errs does not mean that it has exceeded its jurisdiction or departed from the essential requirements of law.

Common law certiorari jurisdiction is similarly limited when the court is asked to review an interlocutory order of a lower court. Such jurisdiction is exercised only where a party will be beyond relief if review is not granted at that stage of the proceedings. The Supreme Court of Florida in Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942) found that interlocutory orders granting discovery could be reviewed by the common law writ of certiorari “[when] no other adequate remedy is offered by law.” The court stated:

“In this case if it is duly shown that the order complained of violates the essential requirements of the law and reasonably may cause the very serious injury complained of which cannot be remedied by any other authorized proceeding, this court has the power and may in its discretion use the discretionary writ of certio-rari to review the order if it satisfactorily appears that no other adequate remedy is afforded by law.” (6 So.2d at page 541)

Since that decision, the frequent changes in the interlocutory appeal rule concerning the types of orders that are appealable has caused the role of certiorari to continually expand and contract to provide review in nonappealable cases. It is true that there are many cases in which appellate courts have reviewed by certiorari an order granting discovery. The rationale of those cases, however, is that appeal is not likely to be an adequate remedy because once discovery is wrongfully granted, the complaining party is “beyond relief”. Boucher v. Pure Oil Co., supra.

Such is clearly not the situation here, where Ford will have the opportunity to recover the disputed amount of money and costs at the trial court level if it is ultimately successful in the suit, and it will have the right to bring the point to this court on appeal after final judgment if it is not. Moreover, there are a number of reasons why an appellate court should not interfere in the trial court’s prejudgment decisions where the complaining party will have other remedies at subsequent stages of the proceedings: The party injured by the erroneous interlocutory order may eventually win the case, mooting the issue; the order may appear less erroneous or less harmful in light of the development of the case after the order; excessive pretrial review of trial judge’s interlocutory orders could lead to harassment and delay; and certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeals only from a few types of interlocutory orders. (See Haddad, “The Common Law Writ of Certiorari in Florida,” 29 U.Fla.Law Review 207 (1977).)

We agree then with the Fourth District Court of Appeal’s statement in Scher-ing Corp. v. Thornton, supra, that each case of this kind must necessarily involve a case by case analysis, with full consideration of all relevant factors: And, as we recently held in Goodyear Tire and Rubber Co. v. Cooey, 359 So.2d 1200 (Fla. 1st DCA 1978), “[t]he mere fact that compliance with the court’s order will be costly is not, in and of itself, a ground for valid objection.”

Here it appears that the trial court made just such a comprehensive individualized analysis in arriving at the complained of order. The order itself recites in depth the long chronology of the dispute between the parties regarding production of the requested documents. There is a lengthy discussion of relevant case law, including Schering Corporation v. Thornton, supra, in the order. In addition, the trial court noted in the order that Ford had already located and reviewed many of the requested documents in order to answer interrogatories earlier propounded by respondent, and he further recited that the assumption by the defendant (Ford) that the plaintiffs would not seek a motion for production thereof, and based on such assumption returned the documents to the respective warehouses, “was solely defendants doing and as a result thereof defendant now requires reassembly of the materials.”

It appears then that the court attempted to balance the various interests of the parties with regard to the costs of producing the requested discovery. In doing so, the court granted Ford’s motion to the extent of requiring respondent to pay the costs of copying the documents. It specifically withheld ruling on whether the other costs would be taxable at the conclusion of the case. On this record, we cannot say that the court’s failure to grant the remainder of Ford’s request at this intermediate stage of the proceeding departs from the essential requirements of law sufficiently to require our assumption of jurisdiction over the cause at this time.

Finding therefore that we are without jurisdiction, the petition for writ of common law certiorari is denied.

McCORD, C. J., and MILLS, J., concur.

      . Indeed, we make no finding at this time whether or not the trial court erred at all. Such a determination, on petition for writ of common law certiorari being denied, would be premature.

      . As implied by our recitation in footnote (1), supra, and in conformity with the authorities herein cited, we here neither decide that the trial judge did or did not err. We simply hold that if there was error it was not of such gravity as to constitute a departure from the essential requirements of law.


source: Caselaw Access Project

author: PER CURIAM. ANSTEAD, Judge,

license: Public Domain

text:
    John Miller BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1027.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    John Miller Brown, pro se.
   PER CURIAM.

AFFIRMED.

DAUKSCH and MOORE, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This is an appeal from the summary denial of a motion for post-conviction relief. The appellant raised several issues in his motion, among them competency of counsel at trial. The trial court denied the motion without hearing in an order that stated no reasons for the denial. I believe the allegations as to competency of counsel were sufficient to entitle the appellant to an eviden-tiary hearing.


author:
MARCUS, Justice. TATE, Justice,
      DIXON, Justice

text:
    Devon A. KELLY, Jr. v. VILLAGE OF GREENWOOD et al.
    No. 61649.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    James E. Bookter, Bossier City, for defendant-applicant.
    David B. Clinkenbeard, Naff, Kennedy, Goodman, Stephens, Donovan & Parnell, Shreveport, for plaintiffs-respondents.
   MARCUS, Justice.

Devon A. Kelly, Jr., holder of a retail beer permit and operator of a lounge in Greenwood, Louisiana, instituted this action against the Village of Greenwood, its mayor and aldermen, seeking a judgment declaring void a local option election held on January 3, 1978.

The local option election had been called pursuant to the local option law. La.R.S. 26:581, et seq. A verified voter petition was filed with the Greenwood governing authority on October 11,1977. A resolution of the governing authority ordering the election for January 3,1978, was adopted at a regular meeting held on November 8, 1977. There was no opposition to the date of the election by way of protest, petition for injunction or other court action. The election was held as scheduled, resulting in a vote of approximately two-to-one against each of the four propositions placed on the ballot. Greenwood was voted dry.

Plaintiff’s suit was brought under the new election code. As a holder of a retail beer permit and operator of a lounge in Greenwood, plaintiff was clearly a “person in interest.” Suit was timely instituted against the proper party defendants. Plaintiff alleged in his petition that the election was not held on a date authorized by the election code and that, except for this irregularity in the conduct of the election, the result would have been different. Basically, defendants’ position was that the new election code did not apply to a local option election called prior to its effective date. Rather, the instant local option election was governed by La.R.S. 26:581, et seq., with which there was substantial compliance. Finding that plaintiff presented no evidence that the result of the election would have been different had the election been held on an authorized date, the district judge rendered judgment in favor of defendants, dismissing plaintiff’s suit at his cost. Plaintiff appealed.

The court of appeal reversed the judgment of the district court finding that the new election code repealed only those sections of the local option election law where in conflict. Therefore, since the verified petition was filed with the Greenwood governing authority on October 11, 1977, the governing authority could have adopted an ordinance or resolution at a regular meeting as late as November 24,1977, fixing the date of the election for Saturday, January 21, 1978. This would have complied with La.R.S. 26:586 and La.R.S. 18:402F. Moreover, the Greenwood governing authority had sufficient notice before January 1, 1978, to comply with the requirement of the election code if any part of the election process were to occur on or after January 1, 1978. Therefore, since the local option election was held on January 3, 1978, and not on Saturday, January 21, 1978, as authorized by La.R.S. 18:402F, the election was void and of no effect. Upon defendants’ application, we granted certiorari to review the correctness of this decision.

First, we agree with the court of appeal that the new election code repealed the local option election law only where in conflict and that the Greenwood governing authority erred in not fixing the date for the election for Saturday, January 21,1978, in compliance with La.R.S. 18:402F. Having reached this conclusion, we are faced with the issue of whether the mere failure to hold the local option election on a date authorized by La.R.S. 18:402F constitutes a cause to declare the election void. We think not.

La.R.S. 18:14010 provides:

A person in interest may bring an action contesting any election in which any proposition is submitted to the voters if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.

In order to successfully contest an election, the challenger must not only allege that, except for irregularities or fraud in the conduct of the election, the result would have been different, but must prove that the alleged irregularity or fraud resulted in one or more of the causes for declaring an election void under La.R.S. 18:1432, which provides:

The final judgment in an election contest shall declare the election void if: (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred.

See Charbonnet v. Braden, 358 So.2d 360 (La.App. 4th Cir. 1978), writ denied, 357 So.2d 560 (La.1978). This statutory scheme is in accord with pre-election-code jurisprudence on the issue. See Moreau v. Tonry, 339 So.2d 3 (La.1976), appeal dismissed, 430 U.S. 925, 97 S.Ct. 1541, 51 L.Ed.2d 769 (1977); Garrison v. Connick, 291 So.2d 778 (La.1974); Dowling v. Orleans Parish Democratic Comm., 235 La. 62, 102 So.2d 755 (1958); Lewis v. Democratic Executive Comm., 232 La. 732, 95 So.2d 292 (1957); Felder v. Police Jury of Livingston Parish, 207 La. 550, 21 So.2d 724 (1945); Landry v. Ozenne, 194 La. 853, 195 So. 14 (1940); Lafargue v. Galloway, 184 La. 707, 167 So. 197 (1936); Womack v. Nettles, 155 La. 359, 99 So. 290 (1924).

In the instant case, plaintiff does not contend, nor do we find, that it is impossible to determine the result of the election, the first cause for declaring an election void under La.R.S. 18:1432. Nor do we find that plaintiff has shown the existence of the second, third or fourth cause for declaring an election void under that statute. As the district judge correctly noted in his reasons for judgment, plaintiff presented no evidence to show that the result of the election would have been different had the election been held on a date authorized by La.R.S. 18:402F. We do not consider that the irregularity is of such a serious nature as to deprive the voters of the free expression of their will. Accordingly, we conclude that the court of appeal erred in declaring the local option election void and of no effect.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the judgment of the district court, rejecting plaintiff’s demands, is reinstated. All costs of these proceedings are assessed against plaintiff.

TATE, J., concurs and will assign reasons.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DIXON, J.

TATE, Justice,

concurring.

I agree with the majority opinion that the new election code governs local option elections and that, accordingly, this election should have and could have been held upon one of the dates specified by La.R.S. 18:402(F) (1977) as mandatory for special ■ elections. I likewise agree with my dissént-ing brethren (and with the court of appeal) that a timely post-election attack upon a local-option election held on an unauthorized date will invalidate the election, without any necessity for the plaintiff to prove that the result of the election was different because of the defective date:

The absence of legislative authorization to hold the election on that date completely invalidates the election. The election, being void as unauthorized by law, the defect is not a mere irregularity under La.R.S. 18 ¡1401(C), for which invalidation of the election is permitted only for the causes shown by La.R.S. 18:1432 — in substance, that the result was different because of the irregularity, or that it was impossible to determine what the result of the election would have been had the irregularity not occurred.

Nevertheless, under the present facts, the election was held in substantial compliance with the laws governing local-option laws, and the difference in date is in the nature of an irregularity, which (not having been contested prior to the election) cannot be availed of by a post-election attack after the opponent has been defeated by a vote of the people. At the time the election was called on November 8, 1977, under the only statute then applicable (La.R.S. 26:586) the date of the election (January 3, 1978) was permissible.

The provisions of Act 545 of 1977, supplementing the election law, did not become effective until January 1,1978. Included in the act were the provisions of La.R.S. 18:402(F); in an effort to minimize special elections this enactment provided special elections to be held only on five specified dates each year. Although this statute had already been enacted earlier in 1977, it was not in effect at the time the ordinance calling the local-option election was adopted.

A provision in the 1976 code (Act 697 of 1976, Section 4), it is true, directed election administrators to take action so that the election could become fully operative on its effective date of January 1, 1978. This was, however, in the nature of a directory admonition, without invalidating consequence for its disregard, as contrasted with an imperative and mandatory provision of obligatory force. The new election code, under its terms not effective until January 1, 1978, cannot in my opinion, be held to have invalidated the action of the governing authority in November, 1977, in calling the election for a date then authorized by law.

Accordingly, for these reasons I concur with the majority’s determination that the election cannot be invalidated because of the attack after the election on the date for which it was called, a valid date for the election at the time of its calling.

DIXON, Justice

(dissenting).

I respectfully dissent.

The ready answer to the majority opinion is that, except for the irregularity in holding the election on a day not permitted by law, the result would have been different: no election, no prohibition. Further, it is clear that La.R.S. 18:1432 is not intended to be the exclusive remedy available in all suits which seek to nullify elections.

In Police Jury of Tangipahoa v. Town of Pontchatoula, 118 La. 138, 42 So. 725 (1907), the police jury was petitioned to hold a local option election and passed an ordinance fixing the date for the election. Thereafter the police jury took no action and its president chose the place of election, the hours of voting and the ballot form. This lack of action on the part of the parish authorities rendered the election void without the challenger’s being required to come forward with proof that the result would have differed if the police jury had selected the polling places rather than its president. The court apparently viewed the police jury inaction as constituting a deficiency more serious than a mere irregularity: “[W]e are of opinion that defendant is well founded in saying that no election has been held in the ward.” 118 La. at 140, 42 So. at 726.

Judicial recognition of a category of election deficiencies graver than mere irregularities was recognized in Felder v. Police Jury of Livingston Parish, 207 La. 550, 21 So.2d 724 (1945). The contestants alleged that the election petition did not contain the signatures of the requisite percentage of qualified voters and that the election commissioners had been appointed beforehand by conspiracy. The district court dismissed the suit on defendant’s exception of no cause and no right of action, but the Supreme Court reversed and held inapplicable the rule requiring one who contests an election for irregularities to demonstrate how they affect the outcome:

“There is an array of decisions in our jurisprudence holding that in an election contest the contestant must not only allege specific irregularities in the conduct of an election, but must also allege and show that, but for the occurrence of such irregularities the results of the election would have been different However, in the instant case the plaintiffs are contending that the calling of this election by the Police Jury was unauthorized and that the election itself was illegally held.” 207 La. at 555-56, 21 So.2d at 726.

This classification of elections into those which are only irregular and those which are. illegal is useful for analyzing the present controversy. In some situations, a failure to comply with provisions of the law will result only in irregularity, and the contestant must prove that the deviation complained of caused a change in the election results. La.R.S. 18:14010. Other deviations from the election law may render an election illegal, and the contestant should not be required to prove the likelihood of a different result because “no election has been held.” Police Jury of Tangipahoa v. Town of Pontchatoula, 118 La. at 140, 42 So. at 726. Requiring the contestant to demonstrate a different result absent the alleged deviation is theoretically unsound, giving presumptive validity to a nullity. Indeed, this second sort of contest is more akin to a declaration of nullity than to an election suit. Accordingly, the absence of reference in La.R.S. 18:1401C and 18:1432 to the availability of such an action is explained by the specific subject matter of the Election Code and the general nature of the declaration of nullity.

Although no Louisiana decision has dealt squarely with the question at hand, a perusal of other jurisdictions reveals a consistent stance on the issue. In most American jurisdictions the failure to comply with a statute establishing the time and place for elections is not regarded as a mere irregularity, Gray v. Reorganized School District R-4 of Oregon County, 356 S.W.2d 55 (Mo. 1962), and the holding of an election at the time and place provided by law is deemed essential to its validity. Smiley v. Gaskin, 115 Ga.App. 547, 154 S.E.2d 740 (1967); Davis v. Page, 217 Ga. 751, 125 S.E.2d 60 (1962); Gann v. Harrisburg Community Unit School District, 73 Ill.App.2d 103, 218 N.E.2d 833 (1966). Moreover, statutes specifying the date for holding an election are ordinarily regarded as mandatory rather than directive. Kinney v. House, 243 Ala. 393, 10 So.2d 167 (1942); Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962); Clark v. Stubbs, 131 S.W.2d 663 (Tex.Civ.App.1939). Elections held on dates other than those fixed by the legislature are considered void unless held on a different date pursuant to a valid court order. Smiley v. Gaskin, supra; Corey v. Hardison, 236 N.C. 147, 72 S.E.2d 416 (1952); State ex rel. Woofter v. Town of Clay, 149 W.Va. 588, 142 S.E.2d 771 (1965).

La.R.S. 18:402F(5) states that certain elections, including local option elections, shall be held “the third Saturday in January of any year . . .’’In discussing this and related provisions, the Court of Appeal referred to the legislative purpose behind their enactment:

“. . . We note that these are Saturday and not weekday dates and that further legislative purpose may be reasonably deduced to be the avoidance of the expense of multiplicity and frequency of elections which possibly create voter apathy. We also observe that the obvious intention of the Legislature is to avoid, if at all possible, even those elections held under special laws from being called on a date other than the dates specified in section 402. . . . ” 357 So.2d at 1184 (2d Cir. 1978).

The majority approach undercuts the legislature’s decision that fewer elections are better for the body politic. Our opinion, if taken literally, can be said to permit elections to be held whenever election officials choose, unless someone can prove that a different result would have obtained on the correct day.

      . The legislature enacted an election code which became effective on January 1, 1978. La.R.S. 18:1, et seq.

      . La.R.S. 18:14010 provides in pertinent part:
      A person in interest may bring an action contesting any election in which any proposition is submitted to the voters

      . La.R.S. 18:1405D states:
      An action contesting an election submitting a proposition to the voters, except a constitutional amendment or a proposition covered by Subsection E of this Section, shall be instituted within thirty days after the official promulgation of the results of the election.

      . La.R.S. 18:1402 provides in pertinent part:
      The following persons are the proper parties against whom actions may be instituted in actions objecting to candidacy and in election contests: ... (3) the governing authority who called an election submitting a proposition to the voters, other than a proposed amendment to the constitution.

      . La.R.S. 26:586 provides in pertinent part:
      The governing authority with whom the petition is filed by the Registrar of Voters shall attach to the petition its sworn verification showing the day, month and year the petition was filed with it.
      If the petition conforms to all the provisions of this Chapter, the governing authority shall order the election. The ordinance or resolution of the governing authority ordering the election- shall be adopted at a regular meeting held not less than thirty nor more than forty-five days from the date the petition was filed with the governing authority by the Registrar of Voters.

      The date fixed for the election shall be not less than forty-five nor more than sixty days from the date of the adoption of the ordinance or resolution ordering the election.

      .La.R.S. 18:402F provides:
      Bond, tax or other elections. Every bond, tax, or other election at which a proposition or question is to be submitted to the voters shall be held only on one of the following dates:
      (1) The last Saturday in October or the sixth Saturday after the last Saturday in October of 1979 and every fourth year thereafter;
      (2) The third Saturday in September or the first Tuesday after the first Monday in November of even-numbered years;
      (3) The first Saturday in April or the sixth Saturday after the first Saturday in April of any year;
      (4) The third Saturday in October or the sixth Saturday after the third Saturday in October of 1981 and every fourth year thereafter;
      (5) The third Saturday in January or any year, which, in addition to the other dates as provided for in this Subsection, shall be exclusively for elections on bonds, taxes, and other propositions or questions and for no other kind of election; or
      (6) In case of an emergency, upon application to and approval by the State Bond Commission, the governing authority of a parish, of a municipality, or of a parish or city school board may conduct a bond or tax election on a Saturday which is not provided for in this Subsection.

      .The election code, as originally enacted in 1976 and supplemented in 1977, provides:
      Section 4. The provisions of this code shall become effective on January 1, 1978; however, all election officials and public employees who under the constitution and the provisions of this code are charged with administering the election laws or performing any duties or functions relating thereto shall, on and after this Act is finally enacted into law, take such immediate action as is necessary in order that the provisions of this code shall become fully operative on and after the effective date hereinabove fixed. Section 4, Act 697 of 1976.

      . 357 So.2d 1182 (La.App.2d Cir. 1978).

      . 358 So.2d 949 (La.1978).


author: PER CURIAM.

text:
    STATE of Louisiana v. Jim WILLIAMS.
    No. 61598.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Nov. 9, 1978.

    Anthony D. Ragusa, Jr., Port Sulphur, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. Andry, III, Leonce J. Malus, III, Asst. Dist. Attys., for plaintiff-appellee.

       TATE, J., would grant a rehearing.

   PER CURIAM.

The' defendant was convicted after a trial by jury of armed robbery, a violation of R.S. 14:64, and was sentenced to thirty years imprisonment without benefit of parole, probation or suspension of sentence. Upon this appeal the defendant relies on thirteen assignments of error for a reversal of his conviction and sentence. We find no merit in the assignments of error.

Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs.

      . The errors assigned by the defendant are as follows:
      1 and 2. The court erred in denying the motion to quash which urged that the petit jury was improperly constituted.
      3. The court erred in granting the State’s challenge for cause of a prospective juror.
      4. The court erred in denying defense challenges for cause of two prospective jurors.
      5.The court erred in denying a mistrial motion based on a State’s witness’ allusion to other crimes of which the defendant was accused.
      6 and 7. The court erred in allowing the introduction of certain physical evidence.
      8. The court erred in denying a motion for directed verdict.
      9. The court erred in allowing evidence of a prior criminal act of a defense witness.

        10. The court’s jury instruction concerning accomplice testimony was erroneous.
      11. The court erroneously allowed the jury to view documentary and physical evidence after it had retired to deliberate.
      12. There was insufficient evidence to convict the defendant of armed robbery.
      13. The court erred in denying the motion for new trial which reurged matters which were the subject of earlier objections.


author: SANDERS, Chief Justice. TATE, Justice Dennis, J.,

text:
    STATE of Louisiana v. Alfred CARTER and Robert Lee.
    No. 61916.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Ivan L. R. Lemelle, New Orleans, for Robert Lee.
    Arthur A. Lemann, III, New Orleans, for Alfred Carter.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Nick Noriea, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

On the evening of March 16, 1977, the defendant Carter was driving a white and green Grand Prix automobile in the midtown section of New Orleans. Defendant Lee occupied the vehicle with him. Officer Robert J. McNeil and a New Orleans high school teacher were patrolling the area of Erato and South Galvez Streets. McNeil, an officer assigned to the Narcotics and Drug Abuse Section of the New Orleans Police Department, recognized the Grand Prix as a vehicle usually driven by Alfred Carter. Carter had stopped at a stop sign at the intersection of South Galvez and Melpomene Streets. McNeil pulled along side the Grand Prix and looked at Carter, who responded to the officer’s interest by first attempting to duck out of sight and then speeded away from the intersection at an excessive rate of speed. McNeil followed and turned on his blue police lights. A high speed chase ensued in which the officer was forced to ram the defendant’s car in order to make him stop.

During this chase, McNeil and his passenger observed metallic objects and brown powdery substances being thrown from both sides of the fleeing automobile. Once this car was stopped, McNeil jumped out and arrested the defendant Carter. During this arrest, McNeil saw a large piece of tin foil containing a brown powder on the front seat of the Grand Prix. Both Carter and Lee were arrested. Other policemen who had been called for assistance searched the area of the chase to recover the items which were thrown out of the defendant’s car. Laboratory analysis revealed that the brown substance contained in the foil found on the front seat and the packets recovered by the police was heroin.

The Orleans Parish Grand Jury indicted Alfred Carter and Robert Lee for the crime of possession of heroin with the intent to distribute, a violation of LSA-R.S. 40:966 B. After a trial by jury, the defendants were found guilty as charged and sentenced to life imprisonment. Defendants rely upon nineteen assignments of error for reversal of their convictions and sentences. Assignments of Error Nos. 17 and 18 were neither briefed nor argued and are considered abandoned. State v. Phillips, La., 337 So.2d 1157 (1976).

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In Assignment of Error No. 1, the defendants argue that the trial court erred in finding probable cause to make the defendants stand trial for possession with intent to distribute after the preliminary hearing of April 22, 1977, and erred in denying the defendant’s motion for a new trial. The defendants in Assignment of Error No. 2 argue that the trial court committed reversible error because its determination that probable cause existed was based upon opinion testimony of a police officer who had not been qualified as an expert witness.

The assignments are without merit. The ■ defendants in the instant matter were indicted by a grand jury. LSA-C. Cr.P. art. 296 mandates that after a grand jury has indicted an accused, the preliminary hearing is limited to the perpetuation of the testimony and the fixing of bail. State v. Sneed, La., 328 So.2d 126 (1976); Cf. La.Const. Art. I, § 14 (1974). After conviction and sentence, errors alleged to have occurred at a preliminary hearing are moot. State v. Luckett, La., 327 So.2d 365 (1976); State v. Monk, La., 315 So.2d 727 (1975).

The defense contention that the trial court erred in denying their motion for a new trial is also without merit. The defendants argue that the State failed to prove specific intent on the part of the defendants to possess heroin with the intention of distributing it. The defendants, relying upon State v. Elzie, La., 343 So.2d 712 (1977), argue there was no showing of specific intent.

This Court will not review contentions that there was an insufficiency of the evidence to support a conviction. Nevertheless, the Court will review the record to ascertain whether there is a total lack of evidence to prove the crime or an essential element of the crime. State v. Perkins, La., 337 So.2d 1145 (1976).

This Court has repeatedly stated that although intent is a question of fact, it may be inferred from the surrounding circumstances of a transaction. State v. Elzie, supra; State v. Willis, La., 325 So.2d 227 (1975); and State v. House, La., 325 So.2d 222 (1975). The State offered expert testimony at trial that the amount of heroin found in the automobile was a wholesale unit. The actions of the defendants during the high speed chase indicated that they were intent on divesting themselves of the heroin which the police found. This other heroin which was recovered from the chase scene was packaged in single dose papers or tin foils, customarily used in distribution. Both defendants testified at trial that they did not use heroin. This Court concludes that there was some evidence upon which the jury could infer that the defendants had the specific intent to distribute the heroin. Since there is some evidence of specific intent, this assignment has no merit. State v. Williams, La., 310 So.2d 513 (1975).

ASSIGNMENT OF ERROR NO. 3

In'this assignment of error the defendants contend that the trial court erred in denying their motion to suppress the evidence. They argue that the police officer’s sole ground for the initial stop was the startled look on defendant Carter’s face when he noticed that Officer McNeil was looking at him.

The argument is factually inaccurate and is without merit. The record reflects that the officer pursued the defendants because Carter drove at an excessive speed. Immediately following the stop, Carter stated to the officer, “I had to run and get rid of this stuff. You know I’m on probation.” The officers had already observed powdery substances being thrown from the car. Although there is a dispute as to the precise time the officer informed the defendants they were under arrest, it is clear that at this time the officers had probable cause to make an arrest both for speeding and possession of narcotics.

The tin foil packet, readily identifiable under the circumstances as contraband, was in plain view on the seat at the time of the arrest. Thus, under the plain view doctrine, the seizure was constitutional. State v. Braud, La., 357 So.2d 545 (1978). It is well established that contraband in the plain view of a police officer who is legally at the location where he obtains the view is subject to seizure without a warrant. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Williams, La., 347 So.2d 231 (1977); State v. Meichel, La., 290 So.2d 878 (1974).

ASSIGNMENT OF ERROR NO. 4

On the morning of May 19,1977, this case was called for trial. The trial court noted that defendant Lee was not in the courtroom. Counsel for defendant informed the trial court that Lee was at a local hospital seeking to be admitted as a patient. The trial court called the hospital and discovered that the defendant was denied admittance. A Deputy Sheriff was dispatched to pick up Lee and to bring him to the courthouse. When Lee arrived, the trial court again called this matter for trial. At that moment Lee slumped to the floor. The trial judge called the coroner’s office and requested that a doctor be sent to examine the defendant. Glen Pritchard, a medical specialist assigned to Orleans Parish Prison, examined Lee. He concluded that the defendant was falsely asserting the pain. He explained that the symptoms the defendant described did not correspond with the ailment, a bleeding ulcer, of which Lee complained.

Based upon the refusal of the admitting physician of the local hospital and the opinion of this medical specialist, the trial judge ordered that the trial of both defendants to proceed. At that time, the counsel for the defendants moved that the trial of this matter be continued. He argued that he could not proceed with the defendant Lee. Noting that Pritchard was not a doctor, the trial judge ordered another examination of the defendant. Dr. Dwight McKenna, Assistant Coroner of Orleans Parish, made this examination and testified that the defendant with a proper diet would be fit for trial.

This assignment of error was taken when the trial judge denied the defendants’ motion for continuance and motion for a mistrial because the continuance was not granted. The defendants argue the trial court abused its discretion in denying these motions. The record reflects that there were two court ordered examinations. Also, it is apparent from the record that the trial judge talked with the admitting physician at the local hospital which refused to admit Lee. All three evaluations of the defendant indicated that the defendant was able to stand trial. None agreed or stated that the defendant had a bleeding ulcer and in fact all appear to refute that allegation. There was no evidence indicating that the defendant could not stand trial or that the trial would have a deleterious effect on Lee’s health. Considering the guidelines set out in State v. Karno, La., 342 So.2d 219 (1977), this Court finds no abuse of discretion by the trial court.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

This assignment of error alleges that the trial court erred in denying the defendants’ motion for a mistrial based upon the contention that the jury was not properly selected according to the Louisiana Code of Criminal Procedure. The employees of the jury commissioner made a typographical error in typing the petit jury ve-nire list. The list contained the name of one juror twice. This list was cut up and placed in a container in order that the jury in this matter could be chosen by lot, as required by LSA-C.Cr.P. arts. 418 and 784.

This juror was in fact called. He was dismissed upon being challenged by the defense. Since his name was called only once and since he did not serve on this jury, this issue is insubstantial.

The fact that the name was in the pool twice was the result of an unintentional error. He did not serve and no prejudice to the defendants has been demonstrated.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 6, 7, AND 8

These assignments of error assert that the prosecutor made prejudicial remarks in his opening statement to the jury. The record shows that the defense did not interpose one objection on these grounds during the opening statement or at the conclusion of the opening statement. Since there were no contemporaneous objections at trial on these grounds, these assignments of error are without merit. LSA-C.Cr.P. art. 841; State v. Anthony, La., 347 So.2d 483 (1977); State v. Passman, La., 345 So.2d 874 (1977); and State v. Williams, La., 341 So.2d 370 (1976).

ASSIGNMENT OF ERROR NO. 9

The defendants argue in this assignment of error that the trial court erred in qualifying Captain Cox of the New Orleans Police Department Crime Laboratory as an expert witness in the identification of heroin. Captain Cox’s credentials were seventeen years experience with the New Orleans Police Department Crime Laboratory, a Bachelor of Science degree in medical technology and chemistry from Southeastern Louisiana College, participation in several hundred heroin examinations, and the fact that at the time he testified he was the senior criminologist at the police crime laboratory. LSA-R.S. 15:466 establishes the test for an expert’s competency is his knowledge of the subject matter about which he is to testify. In determining that competency, the trial court is vested with broad discretion. This Court will not disturb that determination in an absence of a clear showing of an abuse of discretion. State v. Kinchen, La., 342 So.2d 174 (1977); State v. Owens, La., 338 So.2d 645 (1976); and State v. Traylor, La., 311 So.2d 847 (1975). There has been no showing in this matter that the trial court abused its discretion.

The assignment is without merit.

ASSIGNMENT OF ERROR NO. 10

The defendants assign as error the trial court’s denial of the defendants’ objection to one of the State’s questions propounded to its expert witness. The defendants contend that the State was allowed to ask a leading question.

After the prosecutor asked Captain Cox the results of his analysis of the substances found in the defendants’ presence at the time of their arrest, the witness answered that the substances were heroin. Attempting to be certain that the witness was sure of his findings, the prosecutor asked, “Captain, in your expert opinion are you certain, absolutely certain that this is heroin?”

LSA-R.S. 15:277 defines a leading question as one which suggests to the witness the answer he is to deliver. Captain Cox had already testified that the substances were heroin. The State’s question was aimed at insuring the witness’s certainty and not at suggesting an answer. Control of the examination of witnesses is within the sound discretion of the trial judge. State v. Terregano, La., 336 So.2d 859 (1976). There is no showing of an abuse of that discretion calculated to prejudice the rights of these defendants. In the absence of such a showing, this Court will not disturb the trial court’s ruling. State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972).

ASSIGNMENT OF ERROR NO. 11

In this assignment of error, the defendants argue that the trial court erred in denying the defense counsel access to the report prepared by Captain Cox concerning his analysis of the substances examined. The record shows that the State did not introduce any reports prepared by this witness. His testimony indicates that he was testifying from memory. There is nothing in the record to show nor do the defendants argue in brief that the witness testified from his written report.

The expert witness’s testimony was the best evidence of the results of his examination and analysis. State v. Taylor, La., 282 So.2d 491 (1974), reversed on other grounds 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The trial court did not abuse its discretion in this matter. LSA-R.S. 15:436.

ASSIGNMENT OF ERROR NO. 12

The defendants argue that the trial court erred when it denied their motion for a mistrial based upon an allegedly prejudicial comment made by the arresting officer. The officer was testifying as to the events leading up to the arrest of the defendants. While describing the Grand Prix, the officer stated that the car had “the large white gangster-type wheels.” Defendants contend that the reference to “gangster wheels” was prejudicial. We disagree. The tire industry and its salesmen refer to this extra wide white wall tire as “gangster wheels.”

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 13

In this assignment the defendants argue that they were prejudiced by the jury’s knowledge that they were no longer free on bond during the trial. After the State had presented its case, the trial judge, outside the presence of the jury, raised the defendants’ bonds from $10,000 to $50,000. The record does not demonstrate that the jury ever became aware of the fact that the defendants were no longer free on bond. No prejudice has been shown.

The assignment is without merit.

ASSIGNMENT OF ERROR NO. 14

During the defense’s presentation of its case, Linda Hall was called as a witness. During the State’s cross-examination of this witness, the prosecutor asked if she knew that Sharon Rudolph was related to Timothy Rudolph. (Timothy Rudolph was at an earlier date a defendant in a murder prosecution.) The defense objected and moved for a mistrial. The witness did not answer the question. Out of the presence of the jury, the trial judge instructed the prosecutor not to ask any questions relating to Timothy Rudolph. At the end of the trial, the trial judge questioned each juror to ascertain whether any of the jurors recognized the name of Timothy Rudolph. The jurors all indicated that they did not know who Timothy Rudolph was.

The defendants’ contention that this reference to Rudolph, constituted undue prejudice is without merit. The question propounded to the witness Linda Hall was not answered. The trial judge immediately instructed the prosecutor not to mention Rudolph or to ask questions relating to Rudolph. The trial judge’s questions to the jury at the end of the trial showed that the jurors did not recognize the name “Rudolph.”

ASSIGNMENT OF ERROR NO. 15

In this assignment of error, defendant Lee asserts that the trial court erred in allowing the prosecutor to ask the defendant questions concerning his prior conviction for possession of marijuana. During the defense’s presentation of its case, Lee testified that he had pled guilty to a charge of possession of marijuana. On cross-examination, the State asked the defendant if he had any other prior convictions. The defendant answered in the negative, but in subsequent questioning he revealed that he had also been convicted of simple battery. The State then questioned the defendant relative to the marijuana conviction and asked the defendant whether he was arrested with anyone else on this marijuana charge. The defendant again answered in the negative. The State then proceeded to impeach the defendant’s credibility by referring to a certified copy of the Bill of Information charging defendant with possession of marijuana. The bill showed that the defendant had been arrested with another individual. This Court has held that the State, in impeaching the credibility of a defense witness, may not only establish pri- or convictions of the witness, but also may cross-examine the witness about details of the prior convictions in order to show the true nature of the offense. State v. Jackson, La., 307 So.2d 604 (1975). This rule also applies to defendants testifying in their own behalf. State v. Dupar, La., 353 So.2d 272 (1977); State v. Elzie, La., 351 So.2d 1174 (1977); and State v. Victor, La., 347 So.2d 205 (1977).

ASSIGNMENT OF ERROR NO. 16

The defendants in this assignment of error argue that the trial court erred in denying their motion for mistrial based upon prejudicial comments made by the prosecutor in his rebuttal argument. In that argument, the prosecutor stated:

“ . . . You are going to have to remember every time you go in your kitchen and look at one of these zip lock bags, or a baggie or something like that, you are going to remember this; and you are going to associate these bags with them, right over there. Talking about life imprisonment, think about the hundreds of kids on the street that get hooked on all this mess.”

Further on in the rebuttal argument, the prosecutor stated:

“Think of those people in your community, what this does to them. You know this is a double-edged sword. They go to jail, no telling what happens to the other kids.”

The defendants argue that these statements are inflammatory and appeal to prejudice.

Under the jurisprudence, the Court will not reverse a conviction on the ground of improper argument unless the Court is satisfied that the argument was impermissible, that the jury was influenced by the remarks, and that they contributed to the verdict. State v. Lee, La., 340 So.2d 180 (1976); State v. Chaffin, La., 324 So.2d 369 (1975); State v. Dennis, 250 La. 125, 194 So.2d 720 (1967); and State v. Jackson, 227 La. 642, 80 So.2d 105 (1955). Although the argument here is questionable, we conclude that there is no adequate basis to reverse the conviction.

ASSIGNMENT OF ERROR NO. 19

After the trial in this matter it was discovered that there was some reading material in the juryroom at the time that the jury made its deliberations. This matter was two boxes of old law books and a folder belonging to the District Attorney’s office. During the hearing on the defendants’ motion for a new trial, the trial judge questioned the jurors individually concerning this reading material. The defense counsel requested permission to interrogate the jurors. The trial court refused to grant counsel’s request; that refusal forms the basis of this assignment of error.

Jurors are incompetent to impeach their own verdicts. LSA-R.S. 15:470; State v. Abney, La., 347 So.2d 498 (1977). Hence, the trial court’s ruling was correct.

ASSIGNMENT OF ERROR NO. 20

The defendants argue that the mandatory life imprisonment sentence provided in LSA-R.S. 40:966(B)(1) is unconstitutional as cruel and unusual punishment. The defendants were sentenced on August 1, 1977. The statute at that time provided for a sentence of life imprisonment but permitted suspension of sentence, probation, and parole. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 21

The defendants argue that the trial court erred in denying their motion for a new trial and the motion in arrest of judgment. Both motions concerned the fact that there were old law books and a folder belonging to the District Attorney’s office in the jury-room at the time the jury made its deliberations. The trial court at the hearing on these motions questioned eleven of the twelve jurors concerning this reading material. The twelfth juror was out of the country and thus was unavailable. The eleven jurors all testified that they did not read anything in the folder. Two of the eleven stated that they had looked at the pocket parts. One juror, Joan Oriol, stated that she read one of the books and only remembered a section concerning exemption of women from jury duty. Bruce Rae-burn also testified that he read annotations but could not recall the subject matter of the annotations. Both jurors testified that they were not influenced by these books in their determination of the defendants’ guilt.

A similar issue was presented in State v. Abney, La., 347 So.2d 498 (1977), where the defendant contended in his motion for a new trial that the jury was unduly influenced by papers that were exposed on the prosecutor’s table relating to the defendant’s prior convictions. Eight jurors testified at the hearing on that motion and all denied any knowledge of the prejudicial papers. We conclude that the trial judge properly denied a new trial.

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

TATE, Justice

(concurring in part, dissenting in part).

I concur as to the affirmance of the conviction. However, once again I express my disagreement with State v. Jackson, 307 So.2d 604 (La.1975). That decision held that a witness may be questioned as to the details of his prior conviction. (The latter is permissible for the sole purpose of impeaching the witness’s credibility, La.R.S. 15:495.) The majority’s interpretation not only permits unfair prejudice to an accused, but it is contrary to the statutory purpose and to the historical reasons for impeachment by prior conviction. See Note, 38 La.L.Rev. 899 (1978). Until Jackson is overruled (as it must inevitably be), however, I will abide by the majority construction of the statute.

I dissent as to the affirmance of the life sentence for this offense, at least as justified for the reason articulated by the majority. Although the issue is not squarely posed as to the unconstitutionality of the statute as applied to these defendants, I believe that the life sentence may be constitutionally excessive as mandatory requirement upon conviction of the offense, whatever the circumstances. See my concurring opinion in State v. Terrebonne, 354 So.2d 1356, 1357 (1978), and my dissenting opinion in State v. Sykes, 364 So.2d 1293 (La.1978).

Dennis, J.,

dissents. Errors Nos. 15 & 16 assigned by defendant deprives him of a fair trial.


text:
    STATE of Louisiana v. Joey SAVOIE.
    No. 62200.
    Supreme Court of Louisiana.
    Oct. 18, 1978.
    Harold J. Sonnier, Tauzin & Sonnier, Thi-bodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Joey Savoie was charged by bill of information with simple burglary in violation of La. R.S. 14:62. On March 13, 1978, the defendant pled guilty as charged. Subsequently, he was sentenced to serve six years at hard labor in the custody of the Department of Corrections. He now appeals to this Court, assigning as error the trial court’s imposition of the six year sentence.

Article 894.1 of the Code of Criminal Procedure sets forth both grounds for imposition of sentence and factors which should be accorded weight in the trial court’s determination of suspension of sentence or probation. Additionally, the article states that the “court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” The record in this case, including the transcription of sentencing, does not reflect that the trial court complied with this mandate to particularize the sentence to this defendant. See State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978).

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


text:
    STATE of Louisiana v. Melvin TYLER.
    No. 62308.
    Supreme Court of Louisiana.
    Oct. 18, 1978.

      Raymond A. McGuire, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Melvin Tyler was charged with second degree murder in violation of La.R.S. 14:30.1 and after trial by jury was found guilty as charged. Subsequently the trial court sentenced him to imprisonment for life without benefit of probation or parole. Defendant now appeals his conviction and sentence to this Court.

While we find no grounds for reversal of defendant’s conviction, we note ex proprio motu that the sentence imposed is illegal. La.C.Cr.P. Art. 920(2). At the time of the commission of this offense on March 20, 1975, the appropriate penalty following a conviction for second degree murder was imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty (20) years. La.R.S. 14:30.1, added by Acts 1973, No. 111, § 1. Accordingly, the case must be remanded for resentencing.

Defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to sentence the defendant in accordance with law.


text:
    Inez FUNDERBURK et al. v. MONTGOMERY ELEVATOR COMPANY et al.
    No. 62310.
    Supreme Court of Louisiana.
    Nov. 8, 1978.
   JOINT MOTION OF APPLICANTS AND RESPONDENTS TO DISMISS MATTER PENDING BEFORE THE COURT

ORDER

The * * * Motion to Dismiss having been considered:

IT IS HEREBY ORDERED that this matter bearing Docket No. 62,310 on the docket of this Court entitled, “INEZ A. FUNDERBURK, ET AL VS. MONTGOMERY ELEVATOR COMPANY, ET AL”, 359 So.2d 620, be dismissed.


text:
    Inez FUNDERBURK et al. v. MONTGOMERY ELEVATOR COMPANY et al.
    No. 62375.
    Supreme Court of Louisiana.
    Nov. 8, 1978.
   Joint motion of applicants and respondents to dismiss matter pending before the court.

ORDER

The * * * Motion to Dismiss having been considered:

IT IS HEREBY ORDERED that this matter bearing Docket No. 62,375 on the docket of this Court entitled, “INEZ A. FUNDERBURK, ET AL VS. MONTGOMERY ELEVATOR COMPANY, ET AL”, be dismissed. [See also 359 So.2d 631]


author: SANDERS, C. J.,

text:
    STATE of Louisiana v. Clyde VALDEZ.
    No. 62908.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   SANDERS, C. J.,

would grant the writ. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).


text:
    Lewis T. BLAND v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al.
    No. 62948.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Lewis T. Bland applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 549.

Writ granted. The judgment of the Court of Appeal is reversed, and the case is remanded to the trial court. The trial judge is directed to comply with C.C.P. 1813, and order either a remittitur or a new trial. See Lynch v. Derryberry, 341 So.2d 902 (La.1977).

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent from the order.


author: SUMMERS, J., SUMMERS, Justice

text:
    Freddie PENNEYWELL, Individually and for the minor, Edrick Penneywell v. CLARK-DUNBAR, INC., et al.
    No. 62828.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
    DIXON, CALOGERO and MARCUS, JJ., concur in denial.
   SUMMERS, J.,

dissents from denial.

DIXON, CALOGERO and MARCUS, JJ. concur in the denial. However, the opinion of the Court of Appeal, which states that “there is a reasonable evidentiary basis for this holding, and accordingly, it is affirmed” does not correctly express the holding of Canter v. Koehring Co., 283 So.2d 716 (La. 1973). That case did not hold that a judgment of the trial court should be sustained if “there is a reasonable evidentiary basis.” In Canter we stated: “Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” 283 So.2d at 724.

Nevertheless, it does not appear from the application before us that, if the Court of Appeal had reviewed the evidence in detail, its evaluations and inferences from the evidence would have differed from those of the trial court.

When the trial court makes no finding of fact, and the Court of Appeal affirms in an eight line opinion, citing Canter, supra, for the proposition that it would not reverse because there is a reasonable evidentiary basis for the trial court’s holding, it is understandable when the appellant complains that he has not been accorded a review of the judgment below as provided by the Constitution.

SUMMERS, Justice

(dissenting).

I dissent from the denial of plaintiff’s application for certiorari for the reason that this Court cannot properly judge the merit or demerit of the application in the present posture of this case.

This case, according to the assertions of plaintiffs’ application, involves an automobile-pedestrian accident which occurred on December 31, 1974 in a residential area of the city of Alexandria, Louisiana. On that date, defendant, Ray Guillot, was driving a truck in the course and scope of his employment with Clark-Dunbar, Inc., a department store in Alexandria. As he drove down University Street in Alexandria, near its intersection with Seventh Street, his vehicle struck and injured young Edrick Pen-neywell, who had been playing nearby and was in the street at the time of impact.

As a result of the impact, young Penney-well sustained a fractured femur, contusions about the body, and a laceration of the tongue. Further, while hospitalized, he developed a condition known as Stevens-Johnson Syndrome.

It was stipulated that Guillot was driving the Clark-Dunbar truck in the course and scope of his employment; that United States Fidelity and Guaranty Company was the insurer of that vehicle with adequate limits, and that there were no policy defenses in the case.

Relator asserts the primary issues in this case involve the negligence of Guillot in driving outside of his lane and/or in exceeding the speed limit.

It is further asserted that plaintiff’s primary testimonial offerings as to the occurrence of the accident itself consisted of two unbiased eyewitnesses and one witness who appeared at the scene immediately after the accident. On the other hand, it is represented that the only defense witness in this respect was the defendant Guillot who testified in his own behalf.

Understandably, the defendants urged in the Court of Appeal that the case was one of conflicting testimony and defendant testified that young Penneywell darted from behind a parked vehicle into his path.

According to this application, there is no record of the reasons for judgment of the trial court other than this minute entry:

“For the oral reasons this day handed down the Court ruled that plaintiff has failed to prove any act of negligence committed by the defendant driver. Judgment rendered in favor of the defendants and against plaintiff rejecting latter’s demand at his cost.”

Although this entry makes reference to oral reasons, the representations of this application are to the effect that no other reasons were actually given by the court except those contained in the minute entry itself.

On appeal from this trial court judgment, the Court of Appeal rendered this opinion and decree:

“The record reflects that this appeal of a vehicular-pedestrian accident case involves only questions of fact which the trial judge resolved against plaintiff, finding that plaintiff had failed to prove any act of negligence committed by the defendant driver. There is a reasonable evidentiary basis for this holding, and accordingly, it is affirmed. Canter v. Koehring Company, 283 So.2d 716 (La. 1973).
“Costs on appeal are taxed against plaintiff.
“Affirmed.”

Relator asserts the foregoing opinion rendered on May 24, 1978 was not designated for publication.

Without a transcript of the evidence relating to these contentions, it being unnecessary to furnish a transcript in an application for certiorari, or review, this Court is unable to determine the correctness of the judgment of the Court of Appeal or trial court. A finding of fact is essential to a decision of the legal issues involved. Rule 10, Rules of the Supreme Court.

In reviewing a judgment of the Court of Appeal in Dick v. Phillips, 253 La. 366, 218 So.2d 299 (1969), where no finding of fact was contained in the opinion of the Court of Appeal, this Court stated:

“Although it is true that we grant writs only on questions of law, it should be remembered that the law cannot be disassociated from facts, and its proper application in any given instance can only be ascertained by reference to the factual context in which it is sought to be applied. Court of Appeal opinions, therefore, must set forth the salient facts and the law as applied to those facts in order that this court may determine whether an error of law has been committed. La. Const. art. 7, § 11 (1921).”

While dissents were filed to other propositions in the case, all members of the Court subscribed to the quoted statement.- The dissents to the legal propositions applied to the factual findings developed by this Court in Dick v. Phillips points out the crucial part those facts played in the decision.

A concurring opinion in Dick v. Phillips set forth that the Court of Appeal opinion “must set forth the salient facts and the law as applied to those facts.” In the opinion of the concurring justice, the case should have been remanded to the court of appeal “with instructions to write an opinion discussing the facts and the law applicable thereto.” He was further of the opinion that under our judicial system, “the litigants as well as this Court, are entitled to this.”

It has long been the law of the statutes and cases in this State that any party in interest who may feel aggrieved by the judgment of the intermediate appellate court may apply to the Supreme Court for a writ of certiorari, or review, to determine or review questions of law or jurisprudence. La.Rev.Stat. 13:4450 (repealed by Act 181 of 1977). Although Section 4450 of Title 13 of the Revised Statutes to this effect was repealed by Act 181 of 1977, the repeal was designed to reconcile the thirty-day period allowed by statute for applying for certiora-ri with the time allowed for applying for writs set forth in the contemporaneous enactment of Act 179 of 1977 (La.Code Civil Pro. art. 2166). The principle expressed in Section 4450 that certiorari, or review, is granted to determine or review questions of law or jurisprudence remains viable in our jurisprudence: E. g., Day v. Campbell-Gros-jean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971); Savoie v. Dupuy, 218 La. 717, 50 So.2d 817 (1951) and Francez v. Francez, 152 La. 666, 94 So. 203 (1922).

Without a finding of fact the opinion of the Court of Appeal makes it impossible for this Court to determine whether the case has been decided under the appropriate rule of law.

Regretfully in State v. Hills, 337 So.2d 512 (La.1976), this Court set the example for these abbreviated opinions which are merely conclusionary statements, not opinions in the sense that the finding of fact and a discussion of the law applicable to those facts are set forth. In my dissent in State v. Hills to this Court’s practice of affirming serious criminal cases by a one-word judgment, I expressed the view that a written opinion was essential to a proper decision and required by the Constitution. La.Const. art. V, § 5(A) (1974). I feel these reasons are equally applicable to opinions of the Courts of Appeal. However, in the case of a Court of Appeal opinion, the problem is compounded when a party aggrieved by its judgment seeks relief here by certiorari. We cannot review an opinion which does not set forth the facts and law upon which it is based.

Louisiana’s earliest Constitution required judges to refer in every definitive judgment to the particular law in virtue whereof such judgment was rendered, and further prescribed that they should in all cases “adduce the reasons on which the judgment is founded.” La.Const. art. IV, Sec. 12 (1812). By the Act of February 17, 1821 the Legislature required “each and every of the” judges of the Supreme Court to deliver separate and distinct opinions in each case “seratim, commencing with the junior judge of such court.” The Constitution of 1845 declared that in all cases where the four-justice court was equally divided in opinion, “each of the judges shall give his separate opinion in writing.”

The Constitution of 1852 restated the mandate of the first Constitution on this subject as follows:

“The judges of all courts within the State shall, as often as it may be possible so to do, in every definitive judgment, refer to the particular law in virtue of which such judgment may be rendered, and in all cases adduce the reasons on which their judgment is founded.” La. Const, art. 72 (1852).

The above-quoted mandate was incorporated into Article 76 of the Constitution of 1864 with the modification that an opinion be rendered “as often as it may be advisable to do so.” Article 80 of the Constitution of 1868, Article 87 of the Constitution of 1879 and Article 91 of the Constitution of 1898 made the same requirement “whenever practicable.” The Constitution of 1913 was more positive on the subject; it ordained that “The judges of all courts shall refer to the law by virtue of which every definitive judgment is rendered, and in every case they shall adduce the reasons on which their judgment is founded.” La. Const, art. 91 (1913).

A like positive mandate is contained in the Constitution of 1921, viz.: “The judges of all courts shall refer to the law and adduce the reason on which every definitive judgment is founded.”

While I recognize that the Constitution of 1974 is silent on the subject, I cannot subscribe to the practice adopted by this Court or the Court of Appeal in this case. I do not believe that the framers of the Constitution of 1974 intended that a practice so long mandated by our Constitutions and universally obeyed by this Court and the Courts of Appeal would be abolished in whole or in part. In my view it is implicit in the Constitution of 1974 and in Louisiana’s judicial history that opinions are not only required but necessary to a proper exercise of judicial power.

Failure to abide by the long-established and constitutionally mandated practice portends an amendment to today’s Constitution which will spell it out.


text:
    STATE of Louisiana v. Charles W. WEEDON.
    No. 63075.
    Supreme Court of Louisiana.
    Oct. 5, 1978.
   In re: State of Louisiana, through the District Attorney, Honorable John M. Mam-oulides, applying for writ of review. Parish of Jefferson.

Writ granted. The ruling of the trial judge is affirmed. However, the irregularity complained of is not one that affects guilt or innocence. Hence, we make the decision prospective only from October 9, 1978. This decision applies to both grand jury and petit juries acting after the above date. See State v. Hoffman, La., 345 So.2d 1 (1977).


text:
    E. C. CHAPPELLE, Jr. v. The GREATER BATON ROUGE AIRPORT DIST. et al.
    No. 62312.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: E. C. Chappelle, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 824.

Writ granted. The case is remanded to the Court of Appeal for reconsideration of the court costs issue in the light of Segura v. Louisiana Architects Selection Board, La., 362 So.2d 498. Any rights of plaintiff to claim damages not originally pleaded are reserved.


text:
    Alton CREDEUR v. Norbert R. LUKE et al.
    No. 63056.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Alton Credeur applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Lafayette. 362 So.2d 1175.

Writ granted.

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:
    Nathan WALKER, Jr., ex ux. v. UNION OIL MILL, INC., et al.
    No. 62994.
    Supreme Court of Louisiana.
    Oct. 16, 1978.
   In re: Nathan Walker, et ux., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Concordia. 360 So.2d 894.

Writ denial rescinded as inadvertent clerical error, and writ granted.


text:
    STATE of Louisiana v. Sienfried Saurll DAVIS.
    No. 63117.
    Supreme Court of Louisiana.
    Oct. 16, 1978.
   In re: Sienfried Saurll Davis applying for remedial writ. Orleans Parish.

Granted. The trial judge is ordered to appoint counsel for the applicant forthwith. See Article 230.1 Code of Criminal Procedure.


text:
    STATE of Louisiana v. Gerald PERRY.
    No. 62109.
    Supreme Court of Louisiana.
    Oct. 16, 1978.
   In re: Gerald Perry, applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. Kenneth E. PICKERING, the Louisiana Commissioner of Financial Institutions.
    No. 63211.
    Supreme Court of Louisiana.
    Oct. 16, 1978.
   In re: Kenneth E. Pickering, the Louisiana Commissioner of Financial Institutions, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Orleans.

Writ denied. Showing made does not warrant the exercise of this court’s supervisory jurisdiction. Relator has adequate remedy by appeal.


text:
    STATE of Louisiana ex rel. William CLAYTON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63078.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: William Clayton, applying for writ of habeas corpus/remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Wallace JONES v. CLERK OF COURT, 32NB JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE.
    No. 63077.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Wallace Jones, applying for writ of mandamus. Parish of Terrebonne.

Writ denied.


text:
    STATE of Louisiana ex rel. Peter PICHLER v. Hayden J. DEES, Warden.
    No. 63073.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Peter Pichler, applying for writ of habeas corpus. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. Ferd KENNEDY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63066.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Ferd Kennedy, applying for writ of certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Kenneth W. PERROW.
    No. 63062.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Kenneth W. Perrow, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Howard L. JACKSON.
    No. 62992.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Howard L. Jackson, applying for supervisory writs and judicial review.

Writ denied.


text:
    STATE of Louisiana ex rel. Shelton Cleveland POWELL, Jr. v. EAST BATON ROUGE PARISH.
    No. 61865.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Shelton Cleveland Powell, Jr., applying for writ of habeas corpus. Parish of East Baton Rouge.

Writ denied. Since the detainer has been withdrawn, the matter is moot.


text:
    STATE of Louisiana v. Daisy ARMSTRONG et al.
    No. 63271.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Roger Williams Insurance Company, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Granted, Stay Order continued.

NOTE: Argument is requested to take into consideration Official Revision Comment (a), La.C.Cr.P. art. 323, and La.R.S. 15:103 (1962), as well as all other sources deemed applicable.

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 Matthew S. Braniff, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, immediately 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 31st day of October, 1978 at 10:00 A.M. why the relief prayed for in the petition of the relator should not be granted.

It is further ordered that, in the meantime and until the further orders of this court all proceedings against the relator in said Criminal District Court shall be stayed and suspended.

Argument is requested to take into consideration Official Revision Comment (a), La.C.Cr.P. art. 323, and La.R.S. 15:103 (1962), as well as all other sources deemed applicable.


text:
    STATE of Louisiana v. Alvin SEALS.
    No. 62731.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Alvin Seals, applying for writs of certiorari, mandamus, prohibition and stay order. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Peter LEWIS v. Hayden J. DEES, Warden, Dixon Correctional Institution.
    No. 62914.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Peter Lewis, applying for writ of certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Salina A. FIELDS.
    No. 63143.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Salina A. Fields, applying for supervisory writs and/or writs of certiorari and review. Parish of Caddo.

Writ not considered. Extension of time within which to apply was granted after time for filing had already expired.


text:
    In re CHIN CHANG CHIEN.
    No. 60578.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Chin Chang Chien, applying for admission to the bar. On reconsideration.

Denied.


text:
    Jackie Ray KING et al. v. PEOPLES BANK AND TRUST CO. et al. PEOPLES BANK AND TRUST COMPANY v. Julius D. GILL.
    No. 63202.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Mr. and Mrs. Jackie Ray King, applying for supervisory writs of certiorari, prohibition and/or mandamus. Parish of Caddo.

Granted.

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 Fred C. Sexton, Judge of the First Judicial District Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1978, 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 a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Robert H. MURRAY v. Charles R. WARD, Judge, Criminal District Court, Section A, Parish of Orleans.
    No. 63087.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Robert H. Murray, applying for writ of mandamus. Parish of Orleans.

Writ granted. Furnish relator with transcript of Boykin examination held June 11, 1971.


text:
    STATE of Louisiana ex rel. Larry P. CUPPAY et al. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Hon. Matthew S. Braniff, Judge, Criminal District Court, Parish of Orleans, Section B.
    No. 63079.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Larry P. Cuppay, applying for writ of mandamus. Parish of Orleans.

Writ granted. Application transferred to district court for disposition.


text:
    STATE of Louisiana ex rel. Rudolph JOHNSON v. Honorable Enos C. McCLENDON, Jr., District Judge, 26th Judicial District Court, Webster Parish, Minden, Louisiana.
    No. 63074.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Rudolph Johnson, applying for writ of mandamus. Parish of Webster.

Granted. Hearing ordered held on or before November 7, 1978.


text:
    CITY OF BATON ROUGE v. Alfred CUMMINGS.
    No. 63053.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Alfred Cummings, applying for supervisory writ of certiorari.

Writ granted. Judgment of contempt vacated. Based upon the record, there is no evidence of wilful disobedience of a lawful order by the defendant client.

SANDERS, C. J., would place on docket for argument.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Henry Peter HARRIS.
    No. 62996.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Henry Peter Harris, applying for supervisory writs of review, prohibition, mandamus and a stay order. Parish of East Baton Rouge.

Granted.

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 Douglas M. Gonzales, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1978, 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 a date to be fixed by this court, 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. Carl LaRUE.
    No. 62394.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Carl LaRue, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo.

Granted.

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 John R. Ballard, Judge of the First Judicial District Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1978, 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 a date to be fixed by this Court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    William F. MULLER v. A. K. DURNIN CHRYSLER-PLYMOUTH, INC., et al.
    No. 63156.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Chrysler Corporation, applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge. 361 So.2d 1257.

Writ denied.


text:
    Charles WHITE, Jr., et al. v. Dr. W. R. EDISON.
    No. 63150.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Dr. W. R. Edison, applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge. 361 So.2d 1292.

Writ denied.


text:
    STATE of Louisiana ex rel. James J. BROWN v. Hon. Bernard J. BAGERT, Sr., Criminal District Court.
    No. 63085.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: James J. Brown applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Bernard HARRIS.
    No. 63082.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Bernard Harris, applying for remedial writs. Parish of Orleans.

Writ denied. Application is moot. The appeal has been lodged and is docketed for hearing in this court on November 17.


text:
    STATE of Louisiana ex rel. Kenneth John AUGUSTINE v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, New Orleans, Louisiana.
    No. 63080.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Kenneth John Augustine applying for supervisory writ. Orleans Parish.

Writ denied. Trial judge acted on application on September 7,1978. The matter is moot.


text:
    STATE of Louisiana ex rel. Randy A. LEDET v. Ashby W. PITTIGREW and William Bass, Attorneys at Law.
    No. 63086.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Randy A. Ledet applying for writ of mandamus. Parish of Terrebonne.

Writ denied.


text:
    STATE of Louisiana v. Charles HAMILTON.
    No. 63088.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Charles Hamilton applying for writ of mandamus. Parish of Orleans.

Writ denied. The application is moot. The appeal has been submitted to this Court.


text:
    STATE of Louisiana ex rel. Robert FELTON, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63089.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Robert Felton, Jr. applying for writs of habeas corpus, mandamus and remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Raymond WASHINGTON.
    No. 63093.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: State of Louisiana applying for writ of certiorari. Orleans Parish.

Denied.

SANDERS,. C. J., and SUMMERS and MARCUS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Sherman WILLIAMS.
    No. 63095.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Sherman Williams applying for supervisory writs. Winn Parish.

Writ denied.

SANDERS, C. J., and DENNIS, J., would grant the writ.


text:
    Robert M. McHALE v. LAKE CHARLES AMERICAN PRESS, INC., et al.
    No. 63096.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Lake Charles American Press, Inc., et al., applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu.

Writ denied. No abuse of discretion.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Junius TERRY et al.
    No. 63100.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Junius Terry applying for writ of habeas corpus. Parish of Jefferson.

Denied.


text:
    Sharleen Marie LAVERGNE v. Mr. and Mrs. Russell MIRE.
    No. 63103.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Mr. and Mrs. Russell Mire, applying for remedial writs. Parish of Lafayette.

Writ denied. Application is moot.


text:
    STATE of Louisiana v. Robert H. BLANTON, III.
    No. 63107.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Robert H. Blanton, III, applying for writ of certiorari. Parish of Ascension.

Writ denied.

TATE and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Norman R. SULLIVAN.
    No. 63108.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Norman R. Sullivan applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.


text:
    Louise J. SMILEY et al. v. Ray BLOUNT.
    No. 63110.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Ray Blount applying for writ of certiorari to the First Circuit Court of Appeal. Parish of Livingston.

Denied.


text:
    STATE of Louisiana v. Michael HARVEY.
    No. 63114.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.

SANDERS, C. J. and SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana v. Henry ANDERSON, Jr.
    No. 63116.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Henry Anderson, Jr., applying for writ of habeas corpus, certiorari, mandamus and prohibition. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert L. GUY v. Judge Leonard GREENBURG, 32nd Judicial District Court, Parish of Terrebonne.
    No. 63123.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Robert L. Guy, applying for writ of mandamus. Parish of Terrebonne.

Writ denied. Since this plea was entered in 1966, there is no Boykin transcript.


text:
    STATE of Louisiana ex rel. Garland Wayne WHITE v. FOURTH JUDICIAL DISTRICT COURT et al.
    No. 63124.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Garland Wayne White, applying for writ of mandamus. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert Lamar GUY v. Judge Wilmore J. BROUSSARD, 32nd Judicial District Court, Parish of Terrebonne.
    No. 63125.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Robert Lamar Guy, applying for writ of mandamus. Parish of Terrebonne.

Writ denied. Since this plea was entered in 1966, there is no Boykin transcript.


text:
    James S. HYMEL d/b/a Hymel General Contractors v. Sarah Van Tessier POWELL.
    No. 63148.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: James S. Hymel, applying for writ of certiorari to the First Circuit Court of Appeal. Parish of E. Baton Rouge.

Writ denied.


author: TATE, J.,

text:
    STATE of Louisiana v. Patrick BURNAMANN.
    No. 63091.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   TATE, J.,

dissents.

It seems to me that a reversal will result if the two non-related offenses are joined for trial (under the present showing), and if the accused is not more fully informed of the dates of the offenses alleged in order to prepare his defense. Determination of these issues at this time may save a reversal, in the event of conviction.


text:
    ASCENSION BUILDERS, INC. v. Wallace C. JUMONVILLE et al.
    No. 63157.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Wallace C. Jumonville, Gertrude Jumonville, Chester A. Melancon and Mary Helen Jumonville, applying for writ of cer-tiorari to the First Circuit Court of Appeal. Parish of Ascension.

Writ denied.


text:
    Alva John BROTH, II v. INTERNATIONAL DISPENSING SYSTEMS et al.
    No. 63154.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Federal Machine Corp., applying for writ of certiorari to the First Circuit Court of Appeal. Parish of Terrebonne.

Writ denied.


text:
    Eva Mae ABRAM v. SLIDELL MEMORIAL HOSPITAL and Argonaut Insurance Companies.
    No. 63146.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Slidell Memorial Hospital and Argonaut Insurance Companies, applying for writ of certiorari to the First Circuit Court of Appeal. Parish of St. Tammany.

Writ denied.


text:
    STATE of Louisiana v. Mervin CHAISSON.
    No. 63140.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Mervin Chaisson applying for writ of certiorari. Parish of Lafayette.

Writ denied.


text:
    Deotha Williams WILSON v. Willie C. WILSON.
    No. 63139.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Deotha Williams Wilson, applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Jackson.

Writ denied.


text:
    STATE of Louisiana et rel. Joe Nathan TUBBS v. Frank C. BLACKBURN, Warden, La. State Penitentiary.
    No. 63128.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Joe Nathan Tubbs, applying for writ of certiorari and habeas corpus. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Melvin MASON.
    No. 63127.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Melvin Mason applying for writ of habeas corpus. Parish of St. Bernard.

Writ denied.


text:
    QUALITY MATERIALS OF TANGIPAHOA PARISH, INC., et al. v. LABARAMA, INC., et al.
    No. 63071.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Quality Materials of. Tangipahoa Parish, Inc., Mrs. Frances T. Evans and Ms. Norma Tycer, applying for writ of certiora-ri to the First Circuit Court of Appeal. Parish of Tangipahoa. 361 So.2d 1285.

Writ denied.

SUMMERS, J., dissents from denial.


text:
    Richard Wayne GENTRY and Travelers Insurance Co. v. John M. PUGH, Hanover Insurance Co. and Insured Lloyds.
    No. 63138.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Travelers Ins. Co., applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Ouachita. 362 So.2d 1154.

Writ denied.

DIXON, J., would grant a writ.


text:
    Joan D. McLaughlin v. HOME INDEMNITY INS. CO. et al.
    No. 63137.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Home Indemnity Ins. Co., et al., applying for writ of certiorari to the First Parish of East Circuit Court of Appeal. Baton Rouge. 361 So.2d 1227.

Writ denied.


text:
    QUALITY MATERIALS OF TANGIPAHOA PARISH, INC., et al. v. LABARAMA, INC., et al.
    No. 63112.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Quality Materials of Tangipahoa Parish, Inc., Mrs. Frances T. Evans and Ms. Norma Tycer, applying for writ of review to the First Circuit Court of Appeal. Parish of Tangipahoa. 361 So.2d 1285.

Writ denied.

SUMMERS, J., dissents from denial.


text:
    Emily FRANCIS v. Eno BROUSSARD and Maryland Casualty Company.
    No. 63145.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Emily Francis, applying for writ of certiorari to the First Circuit Court of Appeal. Parish of Terrebonne. 361 So.2d 1245.

Writ denied.

TATE and DENNIS, JJ., would grant the writ.


text:
    A & P BOAT RENTALS, INC., et al. v. Alwynn J. CRONVICH et al.
    No. 63147.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: A & P Boat Rentals, Inc., et al., applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge. 361 So.2d 1260.

Writ denied.


text:
    Dale BELLARD v. WOODWARD WIGHT AND CO., LTD., et al.
    No. 63102.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Woodward Wight and Co., Ltd., et al., applying for writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 362 So.2d 819.

Denied.


author: DIXON, J.,

text:
    Terry K. STEVENS v. BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF SHREVEPORT, Louisiana, et al.
    No. 63111.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   DIXON, J.,

recused.

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


text:
    Allie P. CHAUVIN, III v. The HIGHLANDS INSURANCE COMPANY.
    No. 63070.
    Supreme Court of Louisiana.
    Oct. 21, 1978.
   In re: Allie P. Chauvin, III, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 1255.

Writ denied.