source: Caselaw Access Project

author: DENNIS, Justice. SANDERS, Chief Justice

license: Public Domain

text:
    Robert H. BAGGERT v. STATE of Louisiana.
    No. 59380.
    Supreme Court of Louisiana.
    Sept. 19, 1977.

      Leo J. Berggreen, Baton Rouge, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Walter L. Smith, Jr., Barbara Rutledge, Marvin Montgomery, Della Hayes Boyd, Asst. At-tys. Gen., for defendant-respondent.
   DENNIS, Justice.

This case presents the questions whether a parolee is entitled to confront and cross-examine adverse witnesses at his parole revocation hearing and whether he is entitled to be represented by appointed counsel at such a hearing.

Petitioner Baggert was convicted of simple burglary in 1973, pursuant to his guilty plea, and was sentenced to six years imprisonment. He was paroled in March, 1975. Seventeen months later, on August 26, 1976, he was arrested on charges of simple burglary and attempted theft and incarcerated in a local jail. These charges were dismissed by the district attorney after Baggert waived a preliminary revocation hearing and was returned to the state penitentiary for a final revocation hearing. The evidence introduced against petitioner in the hearing conducted at the penitentiary on October 26, 1976 consisted of a written police report of his August 26, 1976 arrest and a written report of his parole officer. Baggert, unrepresented by counsel, made a statement denying implication in the alleged crimes. At the conclusion of the hearing the parole board revoked Bag-gert’s parole, and he resumed serving the six year sentence. The stated grounds for revocation were that he had violated a condition of his probation which required that he refrain from engaging in any type of criminal conduct.

On November 17, 1976, relator applied to the district court for a writ of habeas corpus, urging that his parole had been revoked improperly, principally because he had not been afforded the assistance of counsel at the revocation hearing. After a hearing, the district judge denied the application finding that relator had been cognizant of the conditions of his parole and of the consequences of violating them. We granted supervisory writs to review the district court’s decision.

The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), delineated the federal due process rights of parolees and probationers in revocation proceedings. In Mor-rissey, the Court observed that parole revocation is not part of a criminal prosecution:

“ * * * Parole arises after the end of the criminal prosecution, including imposition of sentence. * * * Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” 408 U.S. at 480, 92 S.Ct. at 2600, 33 L.Ed.2d at 494.

If an individual violates the conditions of his parole, he is not-entitled to a new adversary criminal trial or to the full panoply of rights due a defendant in such a proceeding. Morrissey v. Brewer, supra.

Nevertheless, the liberty of a parolee, although conditional, was recognized as valuable and within the protection of the Fourteenth Amendment. Termination of parole, the Court said, must be accomplished by an orderly process, however informal, structured to insure that the finding of a parole violation is based upon verified facts. Morrissey v. Brewer, supra.

Without establishing the precise procedures to be followed, the Court set forth the minimum requirements of due process. It held that a parolee is entitled to two hearings: a preliminary hearing after his arrest and detention to determine whether there is reasonable ground to believe he has violated the conditions of his parole and a more extensive hearing prior to the final decision on revocation by the Parole Board. At the final revocation hearing due process requires:

“ * * * (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499.

The Court did not reach the question in Morrissey whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent. However, one year later, in Gagnon v. Scarpelli, supra, the Court rejected an argument that counsel need never be supplied, finding that “the effectiveness of the rights guaranteed by Morrissey may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess.” 411 U.S. at 786, 93 S.Ct. at 1762, 36 L.Ed.2d at 664.

Neither, the Court emphasized, need counsel be supplied in every instance, since there exist “critical differences” between criminal trials and parole revocation hearings which militate against an inflexible requirement of counsel in revocation proceedings. Unlike a criminal trial, in which the prosecutor is committed to convict and intricate procedural rules might snare the untrained layman, the focus of a parole revocation hearing is upon rehabilitation rather than punishment and formal procedures and rules of evidence are not employed. Additionally, it is often the case in revocation hearings that the facts are either not in dispute, as when the parolee has been convicted of committing another crime or has admitted the charges against him, or are susceptible of simple presentation by the parolee himself. In these situations, the introduction of counsel into the hearing would be unbeneficial to the parolee and would unnecessarily encumber the proceeding. Gagnon v. Scarpelli, supra.

However, fundamental fairness requires that counsel be provided for the indigent parolee in cases where he might be expected to encounter difficulty in presenting his version of a disputed set of facts. The decision as to the need for counsel is to be made on a case by case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.- Although the responsible agency must be accorded considerable latitude in making its determination, the Court suggested particular circumstances in which it deemed the assistance of counsel essential:

“ * * * Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. * * * ” (Emphasis supplied). Gagnon v. Scarpelli, 411 U.S. at 790, 93 S.Ct. at 1764, 36 L.Ed.2d at 666.

Under these guidelines, relator, who consistently denied the charge of criminal conduct against him, had a right to appointed counsel upon request, and we find that the Parole Board abused its discretion in failing to so advise him.

Our conclusion that due process required the provision of counsel in this case is strengthened by the manner in which the hearing was conducted. Unfortunate omissions in the record make it unclear whether relator was informed of his right to confront and cross-examine adverse witnesses, see footnote 2, or whether he knowingly and intelligently waived this right. In any event, it is clear that he was deprived of the benefit of the right by the substitution of a police report and parole officer’s case narrative for live testimony. That the Board was willing to accept such evidence as proof of relator’s parole violation without affording him a meaningful opportunity to confront and refute it, if possible, suggests a disquieting unreceptiveness to any evidence favorable to the parolee. Counsel was needed not only to safeguard relator’s procedural rights, but also to insure that his claims were given fair and impartial consideration.

As the State points out, the Supreme Court did not prohibit the use, where appropriate, of affidavits, depositions, and documentary evidence. See, Gagnon v. Scarpelli, 411 U.S. 782, 93 S.Ct. 1760, 36 L.Ed.2d at 662, f. n. 5. However, Morrissey established as a minimum requirement of due process in revocation hearings “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” When the Parole Board has before it allegations of criminal conduct, and it has not been specifically found that confrontation and cross-examination would expose a witness to a significant risk of harm, it is decidedly inappropriate to receive unassailable written reports as the sole evidence of the alleged violation.

Because we conclude that the revocation proceeding in the instant case did not fulfill the minimum requirements of federal due process it is unnecessary for us to consider at this time whether additional strictures have been imposed by our state constitution.

Accordingly, petitioner is entitled to a writ of habeas corpus. The judgment of the district court denying petitioner such relief is reversed and the case is remanded. The district court is further directed to vacate the decision of the Parole Board and allow the State to conduct a revocation hearing in accordance with the views herein expressed.

SANDERS, C. J., concurs with written reasons.

MARCUS, J., concurs.

SANDERS, Chief Justice

(concurring).

I do not agree that it was necessary for the Parole Board to appoint counsel for the parolee here. There is no rigid constitutional requirement that counsel be appointed in parole proceedings. The parolee made no request for counsel.

In the interest of justice in the present case, I support the decree setting aside the revocation. The parolee had not been convicted of the crime in a court proceeding. Moreover, he denied it. The evidence offered consisted of written reports, which, of course, were admissible at the parole hearing. In the light of all the circumstances, however, the testimony of witnesses to the crime should have been produced.

Accordingly, I concur in the decree.

      . The record of the hearing was destroyed by fire, but a skeletal account of what transpired therein is included in the stipulation of facts.

      . Petitioner was advised by the parole board before the hearing that “[a]t your expense, you may have an attorney, witnesses or visitors present with you at your hearing.” Contrary to the stipulation of facts, entered into by defense counsel and the State, our review of the record does not reveal that Baggert was informed he had a right to cross-examine adverse witnesses.

      . Although Morrissey dealt with parole revocation and Scarpelli with probation revocation, the Court perceived no difference between the two relevant to the guarantee of due process. Gagnon v. Scarpelli, supra. Hence, the principles announced in each case are equally applicable to either type of proceeding.

      . We consider relator’s indigency to have been established by the district court’s finding that he was entitled to appointed counsel in the related criminal prosecution.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Lewis KELLOGG.
    No. 59401.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Lewis Kellogg was charged with the aggravated battery of Even St. Julien, Jr. on March 30, 1974 in violation of R.S. 14:34. After trial by jury defendant was found guilty as charged on July 22, 1976. On December 9, 1976 defendant was sentenced to four years at hard labor. The sentence was suspended on the condition that defendant serve two months in parish jail and be placed on active supervised probation with special conditions for four years.

The victim, Even St. Julien, Jr., and his wife testified as follows: at approximately two o’clock in the morning on March 30, 1974 they were driving in the parking lot of Sambo’s Restaurant in Lafayette looking for a place to park. They waited while the vehicle driven by defendant pulled out of a parking space. After he had pulled out of the slot Kellogg allegedly made some inaudible remarks to St. Julien. After St. Ju-lien asked his wife if she knew who was driving the other vehicle, defendant stepped out of his car and fired a shot at Mr. St. Julien striking him in the right ear and right arm. St. Julien chased the car on foot and threw a hatchet at defendant’s car which made a small hole in the car. The St. Juliens chased defendant in their car until they got his license number and then reported the incident to the police.

Defendant admitted that a confrontation took place on the night in question and that his gun was fired. However, he testified that the gun was discharged accidentally as he defended himself. He said that the St. Juliens’ vehicle pulled behind him and blocked his exit from the parking space. He asked the occupants of the St. Julien vehicle to move their car and Mr. St. Julien allegedly spoke to defendant in a rough tone of voice and made racial slurs (Mr. St. Julien is black; defendant is white). Defendant decided to attempt to calm St. Ju-lien before he entered the restaurant in his upset frame of mind. Defendant further testified that when he approached the St. Julien vehicle, Mr. St. Julien bent over as if to grab a weapon of some sort from under the seat. At this point defendant attempted to defend himself by hitting St. Julien on the head with the butt of the derringer he was carrying in his pocket, but the gun accidentally discharged. Defendant stated that he drove away to avoid further conflict and to report the incident to the police.

Since the only eyewitnesses to the incident to testify were the victim, his wife and the defendant, it is apparent that credibility of the witnesses was of utmost importance in determining the true state of facts. Although defendant may have been wrong to approach the St. Julien vehicle initially, the defendant’s testimony to the effect that St. Julien appeared to reach for a weapon under the seat coupled with the St. Julien’s testimony that the hatchet was on the rear floor under the front seat (as well as previous out-of-court testimony which allegedly put the hatchet on the front seat between the St. Juliens), presented a close jury question on the veracity of defendant’s version of the incident and the reasonableness of defendant’s “defensive” actions. Therefore, defense counsel attempted to test the St. Juliens’ credibility and bias by questioning the witnesses about a civil suit Mr. and Mrs. St. Julien had filed against defendant arising out of the incident in question. The State objected to this line of inquiry and the objection was sustained. Out of the presence of the jury defense counsel explained that in order to show bias and interest, he desired to bring out that Mr. St. Julien had filed a suit for $120,000 in damages, in which Mrs. St. Julien was also seeking damages in the amount of $60,000. The judge’s ruling forms the basis for Assignment of Error No. 2 which we find has merit.

R.S. 15:492 provides:
“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.” (Emphasis added).

Our jurisprudence permits full cross-examination in order to expose any bias or interest of the witness which might influence his perceptions or color his testimony. E. g. State v. Robinson, 337 So.2d 1168 (La.1976); State v. Lewis, 328 So.2d 75 (La.1976). Specifically our cases have permitted counsel to inquire into the existence of a civil suit involving the witness or the possibility of civil liability on the part of the witness when such facts indicate that the witness has an interest in the criminal case or is otherwise not totally impartial. State v. Nolan, 341 So.2d 885 (La.1977); State v. Randolph, 334 So.2d 687 (La.1976); State v. White, 206 La. 744, 20 So.2d 10 (1944). The broad right to impeach the witness for bias or interest is dictated not only by R.S. 15:492 but also by the statutory right to full cross-examination (R.S. 15:280) and the constitutional right of confrontation. La. Const. Art. I, § 16; U.S.Const., Amend. VI; Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

In the instant case the State argues that there was no showing that the St. Juliens filed the criminal complaint in order to aid their civil suit. However, this argument assumes that the existence of the suit reflects upon the witness’ credibility only insofar as a conviction in the criminal case could possibly further the civil claim. But R.S. 15:492 provides that any fact which tends to show bias, interest or corruption should be admitted so that the jury may accord that fact the weight they deem appropriate. It is the possibility of gain or loss dependent upon the witness’ testimony which reveals partiality and interest. Thus, defendant is entitled to have the jury consider the fact that the testimony of the St. Juliens might have been colored because their testimony could affect the merits of their civil claim. The fact that the St. Juliens could possibly damage themselves by testifying to facts inconsistent with the factual basis of the civil claim reveals that they might have a motive to falsify, or that their testimony may not be wholly correct. Since the evidence of the existence of the suit may tend to show bias or interest, it was evidence which the jury was entitled to consider. Due to the close factual dispute and the limited number of eyewitnesses, we cannot say that the omission of this important evidence did not substantially prejudice the accused.

For the foregoing reasons, the conviction and sentence are reversed and the case is remanded for further proceedings not inconsistent with the views here expressed.


author: CALOGERO, Justice. DIXON, Justice SUMMERS, Justice

text:
    STATE of Louisiana v. Mikel TRUDELL.
    No. 59411.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Concurring Opinion Oct. 12, 1977.

      Edward Larvadain, Jr., Larvadain & Scott, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, III, Dist. Atty., Charles J. Yeager, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Mikel Trudell, was charged by bill of information with the March 22, 1973 armed robbery of Robert Bolton. La. R.S. 14:64. He was tried by jury, found guilty as charged, and was sentenced to serve sixty-five years at hard labor in the custody of the Department of Corrections.

On appeal defendant relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends he was denied the equal protection of the law by the state’s peremptorily challenging young blacks from the panel of prospective jurors. Defendant admits that at least one black— an elderly woman — went unchallenged, and that she served on the jury. He complains that “all of the young blacks [on the petit jury venire] were peremptorily challenged by the state.”

We have consistently held that in order for a defendant to establish a constitutional violation in the state’s exercise of its peremptory challenges to exclude blacks he must demonstrate a historical pattern of systematic exclusion. State v. Johnson, 343 So.2d 155 (La.1977); State v. Fletcher, 341 So.2d 340 (La.1977); State v. Bennett, 341 So.2d 847 (La.1976); State v. Haynes, 339 So.2d 328 (La.1976). Defendant here has made no showing of systematic exclusion over a period of time, and his assignment therefore lacks merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant complains that the trial judge erred in admitting his two confessions because the state did not prove they were made voluntarily.

Defendant Trudell was seventeen years old at the time of the armed robbery in question. Although he had gone through the ninth grade, he could not read and was apparently mentally retarded. On the night in question he was picked up at his home by two older friends, Samuel Miles and Tyree Williams, over the protests of his mother who begged him to stay home. They took him to the home of a man he knew, Robert Bolton, who ran a convenience store about two blocks from defendant’s home. Armed with a sawed off shot gun and acting on the instructions of the two boys, he hid in some bushes near Bolton’s home. When Bolton arrived, defendant demanded his money. After Bolton gave defendant his money, Trudell started back to get in his friend’s car. When defendant thought his friends were beginning to drive away without him, he shot Bolton in the stomach. His friends picked him up; they divided up the money; and they took him home.

Defendant was soon arrested and questioned by members of the Rapides Parish Sheriff’s Office. On March 24, 1973 and again on March 27, 1973, Deputy Sheriff Walter Reynolds took two statements from Trudell in which he recounted the events as described above, and stated that he was giving the statements voluntarily and after having been given Miranda warnings.

In response to a motion for appointment of a sanity commission, the trial judge appointed Doctors Roy D. Hill and William L. Kirkpatrick who examined Trudell on September 26, 1973 and concluded that:

“IN OUR OPINION, the accused, Michael Trudell, does not have the mental capacity to proceed and does not have the capacity to understand the proceedings against him or to assist in his defense. The said defendant does have a psychiatric disorder, mental retardation, moderate, with episodes of psychosis.”

The trial judge then found that the accused did not have the mental capacity to proceed and sent the defendant to East Louisiana State Hospital at Jackson. In May of 1974 the trial judge was asked to reconsider Trudell’s commitment. A second sanity commission was held and defendant was re-examined in November of 1974 by Dr. Julien Kennedy and on January 23,1975 by Dr. W. L. Kirkpatrick and Dr. Roy Hill. Although Dr. Kennedy initially found defendant able to proceed to trial, he did, along with Doctors Kirkpatrick and Hill, sign the commission report which found Trudell without the mental capacity to proceed to trial. The trial judge found a second time that the accused lacked the mental capacity to proceed.

In the fall of 1975, a sanity commission was appointed a third time to inquire into defendant’s sanity. Drs. Kirkpatrick and Hill found at their September 12, 1975 examination that defendant had improved considerably and did not appear psychotic at the interview, although he remained, they found, at a mental age of about nine years. The two psychiatrists had before this interview examined the two statements Trudell had given to police and determined that they “showed no evidence of psychosis.” Neither doctor was swayed from his decision that Trudell was psychotic on the occasion of the two prior interviews, but Dr. Kirkpatrick concluded that defendant apparently “has episodes of psychosis and slips in and out of psychosis and also apparently is in a remission at the present time, because he is on intensive doses of tranquilizers and medication.” Dr. Kirkpatrick also opined that Trudell is “extremely suggestible and very easily led.” Dr. Hill made similar findings, and both doctors concluded that defendant then had the mental capacity to proceed to trial. The trial judge ruled defendant Trudell mentally capable to stand trial, and trial was held in August of 1976.

At trial the state, out of the presence of the jury, put forth its evidence to establish that defendant’s statements were voluntary. Deputy Reynolds, who took the two statements, insisted that defendant was offered no inducements, threats or promises, was not mistreated by police and gave his statement voluntarily. The officers who witnessed the statements testified similarly. Defendant himself admitted each of these things on the taped statement, and put forth no evidence at all (his own testimony, psychiatric testimony, or psychiatric reports) at the predicate.

Nonetheless, some of the state’s evidence suggested that defendant was mentally ill. When Deputy Reynolds was asked by the state if defendant appeared to be mentally ill at the time he took the statements, the deputy answered, “I did feel that he’s not a normal individual, yes, sir. ... He didn’t appear to be a stable individual.” He testified that defendant fainted immediately after giving the first statement and agreed with defense counsel on cross-examination that Trudell was a suggestible individual. In addition, of course, the court record contained the previously-described psychiatric reports.

With the predicate and record evidence before him, the trial judge, over defendant’s objection, ruled the statements admissible and the tapes were played to the jury. The issue now facing us is whether that decision was in error.

In order for an inculpatory statement to be admissible in evidence against an accused at trial, the state bears the burden of establishing beyond a reasonable doubt that the statement was freely and voluntarily made. La.R.S. 15:451; State v. Glover, 343 So.2d 118 (La.1977); State v. White, 329 So.2d 738 (La.1976); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969). Once a trial judge has determined that the state has met its burden of proof, his decision is entitled to great weight on review. State v. White, supra; State v. Hall, 257 La. 253, 242 So.2d 239 (1970). The close issue here is whether, in view of the court record of Trudell’s mental retardation and mental instability described hereinabove, it can be said that the state proved beyond a reasonable doubt that his confession was voluntarily and intelligently made.

While a claim of mental illness normally requires a defendant to establish by a preponderance of the evidence that he has a mental illness, where the voluntariness of his confession is at issue the state, having the burden of establishing that the confession was voluntary, still retains that burden. State v. Glover, supra. In such a case, the state must prove that defendant’s level of mental illness did not preclude him from giving a voluntary statement and that he did in fact do so. Here, the court record of Trudell’s mental retardation and psychotic state did establish that he was mentally ill. That finding still leaves us with the question of whether the state established that the mental illness from which defendant suffered at the time of the confessions prevented his statements from being voluntary because he lacked the mental capacity to make such statements.

In making this determination, we must look to the purposes behind the rule that only voluntary statements can be admitted at trial. In Glover we found two of these purposes to be to insure that convictions are based on trustworthy and reliable evidence, see Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), and Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (Justice Douglas, concurring), and to guarantee that the statements were the products of defendant’s free and rational choice. This latter rule was stated in Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) as follows:

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.”

The record in this case clearly established defendant’s mental retardation (with an I.Q. of about 60, or a mental age of about nine years). Additionally, the record in-eludes evidence that at the time he committed the robbery and at the times of several of his psychiatric examinations he was a psychotic individual, easily led and very suggestible. Under these conditions, the state had a heavy burden of proving, beyond a reasonable doubt, that the confession was voluntary in that it was trustworthy and the product of a free and rational choice. State v. Glover, supra.

We find that the trial judge did not err in finding that the state had met this burden. The officers testified consistently that no promises, threats, or mistreatment were inflicted upon defendant, and he makes no such claim. The psychiatric records establish that Doctors Kirkpatrick and Hill found defendant with little or no psychosis at their last interview with him. Moreover, before that interview they had examined the transcripts of the very confessions at issue and found them to “show no evidence of psychosis and show an intact memory capacity.” It was examination of these statements which caused Dr. Kirkpatrick to reverse his previous finding that defendant Trudell was psychotic at the time of the offense, and to find instead that he was not psychotic at the time of the offense.

In addition, we have studied the transcripts of these two lengthy taped state-merits made three days apart beginning two days after the crime occurred. Defendant Trudell was responding to a series of questions to which he gave coherent and responsive answers with only very minor inconsistencies. He indicated that he wanted to explain what happened to the authorities so as to exonerate his brother (who had been arrested for the crime). The transcripts reveal that Officer Reynolds who questioned defendant asked straightforward questions which did not lead the defendant toward particular inculpatory answers. In short, the statements themselves reveal that defendant was lucid, oriented as to time and place, and apparently in control of his faculties at that time. When we review, therefore, the state’s unrebutted predicate testimony that the statements were made voluntarily, the sanity commission reports indicating that the statements show “no psychosis,” and the lucid statements themselves, we conclude that the state did establish beyond a reasonable doubt that the statements were made voluntarily. Accordingly, we find no merit in defendant’s assignment of error.

taking part in an armed robbery in March of 1973. However, he has enough intact memory concerning many other things occurring on the evening of the alleged armed robbery and attempted murder to make this examiner feel that the patient is lying and actually could now tell about the armed robbery and attempted murder as he did to Walter Reynolds on March 24, 1973 and March 27, 1973 in his statement. His memory loss is too convenient. I feel he remembers all of this material as he is able to recall much of this material, but denies knowing anything about shooting anybody or taking part in any armed robbery. After carefully reviewing the supplementary statements by Mi-kell Trudell on Mary [sic] 24 and March 27, 1973, I am forced to reverse my previous opinion that he was psychotic at the time of the alleged commission of the armed robbery and attempted murder. These interviews taken on 3-24-73 and 3-27-73 show no evidence of psychosis and show an intact memory capacity and were taken by Mr. Walter Reynolds shortly after the occurrence of the alleged crime. I feel however, that the patient was definitely psychotic at the time I first examined him in September, 1973, and was again psychotic when he was re-examined in January, 1975. He apparently has episodes of psychosis and slips in and out of psychosis and also apparently is in a remission at the present time, because he is on intensive doses of tranquilizers and medication. My examination, at this time consisted of a psychiatirc [sic] examination including case history, present mental status, orientation, intelligence, memory function for recent and remote events, presence or absence of confusion, presence of coherence, evaluation of any disturbance of thinking or inappropriatness [sic] of emotional responses and presence or absence of delusions, hallucinations or other psychotic manifestations. There were no psychological tests given except the Kent Emergency Test, a brief I.Q. Test which was given the patient. He scored at the mental age of 9 years and is definitely mentally retarded to a mild degree.

For these reasons, we affirm defendant’s conviction and sentence.

CONCLUSION
IN MY OPINION, the accused, Mikell Tru-dell, does have the mental capacity to proceed if he so desires and does have the capacity to understand the proceedings against him or to assist in his defense.
He does have a psychiatric disorder, Mental Retardation, Mild, with episodes of psychosis, but seems to be in remission of his psychosis at the present time. He is able to understand the object, nature, and consequences of the proceedings against him. I feel he is able, if he wants to and will, to communicate with his counsel in a meaningful manner and I feel that when he states he does not recall shooting anybody or participating in an armed robbery that he is lying flagrantly, in as much as he has memories of many other events that occurred at about the same time. Despite his mental retardation he is smart enough to realize that his confession would implicate him in a serious crime and I think he understands some of the consequences of this crime. He said he might get sent to Angola when questioned by the examiner, but wasn’t worried about it.
The patient is mentally retarded. He is extremely suggestible and very easily led. It is my opinion that if he was released out in the community he would not take his medicine since he feels that it interfers [sic] with his thinking and memory capacity now and would revert quickly back into a psychotic state or would have episodes of psychosis and probably he would be led to commit another serious crime. It is my further opinion that the accused tries to act more retarded or stupid than he actually is, realizing that he is getting out of the difficulty of going to Court to face the charges against him. I do not feel that his mental condition deprives him of the ability to disclose to counsel or testify concerning the pertinent circumstances, possible defenses and events in his life which should be peculiarily within his knowledge. I also feel Mikell knows the difference between right and wrong.” [emphasis added]

SANDERS, C. J., concurs.

SUMMERS, J., concurs and will assign reasons.

DIXON, J., dissents with reasons.

MARCUS, J., concurs.

DIXON, Justice

(dissenting).

There can be no knowing and intelligent waiver of a constitutional right by such a psychotic retardate as this defendant.

SUMMERS,

Justice

(concurring).

Insofar as this opinion purports to abolish the presumption that a defendant is sane and responsible for his actions, I must concur. La.Rev.Stat. 15:432. The presumption of sanity is not modified by the fact that a party has confessed. However, when the question of the confessor’s sanity is raised, and the confessor has rebutted the presumption of sanity, the State must affirmatively establish the confessor’s sanity to meet the free and voluntary test of admissibility. La.Rev.Stat. 15:432.

      . Dr. Hill testified at trial for the defendant in a similar manner, but that testimony, not introduced by either the state or defendant at the predicate, was not before the trial judge and forms no part of our decision. State v. Tucker, 332 So.2d 797 (La. 1976); State v. Stevenson, 323 So.2d 762 (La. 1975). It can be noted, however, that the psychiatrist’s testimony in no way contradicted the sanity commission findings which were already a part of the record and properly used as a basis of the decision on admissibility.

      . Dr. Kirkpatrick’s third report follows, in full:
      “PURSUANT TO THE ORDER OF THE NINTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF RAPIDES HAVING BEEN APPOINTED A MEMBER OF A SANITY COMMISSION TO EXAMINE MIKELL TRU-DELL TO DETERMINE HIS MENTAL CONDITION BOTH AT THE TIME OF THE ALLEGED COMMISSION OF THE OFFENSE AND AT THE PRESENT TIME, I DID, THEREFORE, EXAMINE THE ACCUSED ON 9-12-75, IN THE RAPIDES PARISH COURT HOUSE IN A ROOM ON THE FOURTH FLOOR, from 9:00 a.m. until approximately 10:30. This is the third time that I have examined the accused since 9-26-73, when I performed the first mental status examination. I again, performed an examination for the mental status on 1-23-75, and the presently listed date of 9-12-75. At the present time the patient’s mental condition seems to have improved considerably over that of his two previous examinations. At this examination there was very little evidence of delusions or hallucinations or other psychotic material of which there was a considerable amount in the previous two examinations. He did not appear to be psychotic at this interview. The supplementary statements of Tyree Williams, Robert Bolton and Mikell Trudell on two occasions, as given to Walter Reynolds in 1973, were all reviewed prior to this examination. The patient states he is amnesic concerning the possibility of his shooting anybody or


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Kenneth BARRETT.
    No. 59437.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.

      James E. Shields, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., Roy Blondeau, Jr., Research Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Kenneth Barrett was convicted of armed robbery, La.R.S. 14:64, and sentenced to serve five years at hard labor. On appeal he relies on three assignments of error. For the reasons hereinafter given we find the assignments unmeritorious and affirm defendant’s conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

A Jefferson Parish sheriff’s deputy applied to a district judge for a warrant to search defendant’s apartment for drugs and articles involved in armed robberies. In support of his application the officer submitted an affidavit which, in relevant part, recited that:

“On or about the 7th day of December, 1975 the undersigned officer received information from a confidential informer, advising the undersigned that at the above mentioned apartment, there were two subs, staying at that apartment, at [sic] that there was a quanity [sic] of narcotics in the apartment located in the night stand of the bedroom of one Kenneth Barrett w/m, 31 yrs who is the sub. that the apartment is is [sic] in the name of. The CI, advised that she was in the apartment at 530pm this date and observed the above mentioned narcotics. The sub. kenneth has the marijuana bagged in plastic bags the ci advised that he is selling the bags for $10.00 a bag.
“The CI also advised that the subs Barrett and another w/m who resides at the same apartment by the name of David w/m 5'5, thin build with black hair, and a black mustache were involved in numerous armed robberies in the Jefferson Parish, New Orleans area and gave the undersigned a list of armed robberies mentioned in this application and that one was going to be pulled on either the 7th or the 8th of December, 1975. On the 7th of Dec. 1975 there was an armed robbery at Chris’s steak house, located at 3633 Vets Hwy. Met., La at 7:23 pm in which the description fitted the sub. david. The CI advised that the subs were driving a 1966 Ford white over Maroon in color, with Florida plates and that the car was equipped with apolice scanner. Officer was in the area and located the veh. in question about two blocks from the armed robbery and found Barrett and a w/f named Joni Ramsey, 24 yrs. The sub. David could not be found. Officers talked to the sub. Joni after advising the subs of her rights and she gave officers a written statement involving the set up of the armed robbery and how the sub was dropped off.
“For this reason the undersigned officer wishes that a search warrant be issued for the residence, and that the warrant be good for days and nights and for holidays and weekends.”
The search warrant was issued.

In executing the warrant the officer entered the premises and seized the following items: a .38 caliber Taras hand gun and five rounds of ammunition, a pair of black panatela pants, a brown and white shirt, a tan wind breaker jacket, a black cap, a Realistic “Pro-77-A” scanner receiver, and a brown shoulder holster.

Defendant moved to suppress these items. The district court denied his motion, and defendant contends the ruling was erroneous because (1) the affidavit did not set forth facts and circumstances from which a magistrate could conclude that the confidential informant was credible or his information reliable, and (2) the affidavit contained statements known to be false by the affiant.

Louisiana Code of Criminal Procedure Article 162, in part, provides:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
U * * * »

If hearsay information is an essential element in establishing probable cause, the magistrate must be informed of underlying circumstances which show that the informant was in a position to observe the facts reported, and underlying circumstances which show that the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Brawley, 347 So.2d 238 (La.1977); State v. Paciera, 290 So.2d 681 (La.1974); State v. Linkletter, 286 So.2d 321 (La.1973); State v. Wells, 253 La. 925, 221 So.2d 50 (1969).

In the instant case the affidavit reflected that the informant had been in the defendant’s apartment on the same day the warrant was requested. The informant therefore was in a position to observe the facts reported, i. e., that defendant and his companion were living in the apartment and that a quantity of marijuana was located there.

The affidavit also contained underlying circumstances which tended to show that the informant was credible or his information reliable. The officer attested that the informant advised him that the defendant and an individual named David, who had been living at defendant’s apartment, planned to commit an armed robbery in the New Orleans area on the seventh or eighth of December. The informant also gave the officer a fairly detailed physical description of the defendant’s companion and the automobile they intended to use. The officer’s affidavit further stated that such a robbery did occur on December 7th at Chris’ Steak House in Metairie, that the gunman fitted the informant’s description of the defendant’s companion, and that the defendant was stopped in a car matching the description furnished by the informant two blocks from the scene of the crime shortly after it occurred. Moreover, a passenger in the car gave a statement implicating the defendant and herself in the robbery of Chris’ Steak House. Because this detailed information relating to the steak house robbery supplied to the officer in advance by the informant proved to be accurate in every respect, it constituted sufficient grounds for the issuing magistrate reasonably to conclude that the informant was credible or his information reliable.

Defendant’s alternate attack on the search warrant affidavit alleges that the officer falsely stated therein that he had spoken to his confidential informant on or about December 7, 1975, and untruthfully attested that the informant claimed to have seen marijuana in the defendant’s apartment. Although it is not appropriate to challenge the accuracy of an informant’s information by motion to suppress, a defendant may, upon proper allegations demonstrating a genuine issue of the affidavit’s falsity, test the veracity of the affiant and his statements included in the affidavit. State v. Tallie, 337 So.2d 504 (La.1976); State v. Cox, 330 So.2d 284 (La.1976); State v. Giordano, 284 So.2d 880 (La.1973); State v. Melson, 284 So.2d 873 (La.1973).

At the hearing on the motion to suppress, the witnesses were sequestered. When the officer was first called to testify he related that on December 7, 1975, he received information that marijuana was seen in the defendant’s apartment by his confidential informant, as well as information suggesting the defendant’s involvement in a number of armed robberies in the area, including a planned robbery on December 7th. At this time the officer declined to identify the source of this confidential information.

The next witness was Sandra Barrett, estranged wife of the defendant, who testified that she had telephoned the officer on December 7, 1975, and had given him information about defendant’s involvement in several armed robberies. However, she denied having told the officer that she saw marijuana in defendant’s apartment.

After Mrs. Barrett’s testimony, the officer was recalled. He repeated that he had received his confidential information on December 7, 1975. He was then asked by defense counsel:

“Did you have any communication at all with Sandra Barrett, December 7, 1975?”

The officer, not knowing that Mrs. Barrett had already admitted having talked to him, and apparently trying to protect her anonymity, responded:

“Not that I can recall.”

Counsel then asked whether Sandra Barrett was the confidential informant referred to in the affidavit, and upon being compelled to answer by the court, the officer conceded that she was.

Defendant urges that there was a “fatal contradiction” in the officer’s testimony, i. e., he testified that he received the confidential information on December 7th from Sandra Barrett, yet he denied talking with Mrs. Barrett on December 7th. As we view the record, the contradiction probably resulted from, the officer’s effort to avoid disclosure of his informant’s identity. We are not persuaded that defendant, by pointing out this inconsistency in the officer’s testimony, demonstrated the falsity of the information contained in the affidavit upon which the warrant was issued.

Defendant additionally relies on the testimony of Sandra Barrett, who insisted that, although she had given the officer information relating to the armed robberies, she made no mention of the presence of marijuana in his apartment. The question was one of credibility, and we cannot say that the judge who saw and heard the witnesses erred in believing the officer’s testimony.

For these reasons, we conclude that the hearing judge did not err in denying defendant’s motion to suppress the evidence seized during the search of defendant’s apartment. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends in this assignment of error that the trial judge erred in admitting into evidence the eight items seized during the search of defendant’s apartment. Defendant urges that the State’s predicate was insufficient to establish the relevance of the evidence to the case at the time the items were introduced, and that the chain of custody was not adequately established.

Prior to the admission of the physical evidence complained of, the robbery victim testified that the gunman who robbed him wore a black low-brimmed hat, a beige windbreaker, and dark brown slacks, and carried a handgun. Evidence that items similar to those described by the victim were found in the defendant’s apartment is logically relevant to the question of his guilt, as it tends to link him with the commission of the offense. La.R.S. 15:441. Thus, the relevance of the handgun and bullets, the windbreaker, the hat, and perhaps the slacks was demonstrated prior to the admission of these exhibits.

We agree with defendant, however, that the relevance of the shirt, the shoulder holster and the receiver scanner was not established antecedent to their admission. The victim had referred to none of these items in his account of the robbery. Certainly, all eight items introduced as evidence were seized during a search of defendant’s apartment. But the fact that they were seized in the defendant’s apartment does not make them relevant to the crime, absent some showing that they were related to its commission. Accordingly, the trial judge’s ruling admitting the shirt, shoulder holster and receiver scanner was erroneous.

The error was harmless, however, because testimony given subsequent to the admission of the eight exhibits established that all of the evidence, save the brown shoulder holster, was connected to the commission of the charged offense. Defendant has not demonstrated that the admission into evidence of the shirt and the receiver scanner, before their relevance was shown, resulted in a miscarriage of justice. Likewise, defendant has not shown that he was prejudiced by the trial judge’s admission into evidence of the shoulder holster, notwithstanding that it was never connected to the offense charged.

Insofar as defendant complains that the chain of custody was inadequately established, his argument is equally without merit. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), this Court stated:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence. (Emphasis supplied.) 260 La. at 512, 256 So.2d at 608.

The officer who executed the search warrant visually identified all of the physical evidence admitted over defendant’s objection as having been seized during his search of defendant’s apartment. This testimony was sufficient for the trial judge to conclude that the proffered evidence was more probably than not that which was taken during the search of defendant’s apartment.

Furthermore, prior to the receipt of the State’s exhibits into evidence, an employee of the Jefferson Parish Clerk of Court testified that he received the gun in an envelope marked with the defendant’s name from Ronald Singer, of the Jefferson Parish Crime Lab, and accepted the other evidence from a Deputy Serpas. Although defendant argues that the chain of custody was incomplete because neither Singer nor Serpas testified at trial, we have previously held that the absence of testimony of some persons in a chain of custody goes to the weight of the evidence, and not to its admissibility, where the foundation otherwise demonstrates that the evidence is more probably than not related to the case. E. g., State v. Brown, 337 So.2d 484 (La.1976).

Likewise without merit is defendant’s argument that his ownership or possession of the items was not proven. Defendant was being prosecuted for participating in the planning and execution of an armed robbery which a companion, David Forsythe, physically committed. With the exception of the shoulder holster, the evidence admitted was either used by Forsythe in the commission of the robbery or was in defendant’s possession when he was arrested.

In view of the foregoing, we find defendant’s second assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in permitting the State, on re-direct examination, to question state witness Joni Ramsey concerning other criminal charges pending against her in another parish.

During cross-examination, defense counsel improperly attempted to impeach Ms. Ramsey’s testimony by asking if she had been charged with an armed robbery in Orleans Parish. See La.R.S. 15:495. On re-direct examination, the prosecutor asked the witness the nature of that pending charge. Defendant objected without stating the grounds for his objection. The trial judge, apparently accepting the prosecutor’s argument that defendant had opened the door to such questioning, overruled defendant’s objection.

The prosecutor then asked Ms. Ramsey a series of questions concerning the pending Orleans Parish charge, ending with the following question:

“[Was] anyone else arrested with you in connection with this armed robbery in New Orleans?”

Ms. Ramsey then named the defendant, Kenneth Barrett, and David Forsythe.

Although defense counsel initially objected to the State’s questioning of Ms. Ramsey concerning the charges pending against her, in view of the fact that he had initiated the inquiry on cross-examination, and because at this point the inquiry bore solely on the issue of Ms. Ramsey’s credibility, there was no error in the trial judge’s ruling.

When the prosecutor expanded his interrogation to elicit a response inculpating the accused in an extraneous armed robbery, defense counsel remained silent. Since defendant made no contemporaneous objection to the question, which was clearly designed to incriminate the accused in an extraneous offense, La.C.Cr.P. art. 841, and since he made no motion for a mistrial or an admonition when the witness’ answer implicated the accused in the extraneous offense, La.C.Cr.P. art. 771(2), the witness’ response concerning the defendant’s involvement in the Orleans Parish armed robbery is not properly before us for review.

Assignment of error number three is, therefore, without merit.

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


author: PER CURIAM.

text:
    STATE of Louisiana v. Henry BOSS and Evans Brown.
    No. 59579.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
    Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. List. AttY-> for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Tommy G. JETT.
    No. 60728.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Tommy G. Jett applying for supervisory writs.

Writ denied: adequate remedy by review in the event of conviction.


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

text:
    Junious JONES v. STATE of Louisiana, Through the DEPARTMENT OF INSTITUTIONS.
    No. 60259.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Junious Jones applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 807.

Writ refused. On the facts found by the court of appeal, the result is correct.

DIXON, J.,

dissents from the denial, and would grant the writ.

CALOGERO, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

is of the opinion the writ should be granted in order to reexamine the holding of this court in Parker v. State, 282 So.2d 483 (La.1973).


text:
    STATE of Louisiana v. Roger Dale DOUCET.
    No. 60287.
    Supreme Court of Louisiana.
    Oct. 6, 1977.
   In re: Dennis R. Sumpter applying for writ of certiorari.

Writ granted. The granting of this writ shall not interfere with the trial of the case, and a stay order is denied. The appointment is continued. This case shall be placed on the October docket.


author: DIXON, J., CALOGERO, J.,

text:
    William c. McDaniel v. CADDO PARISH SCHOOL BOARD.
    No. 60313.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Caddo Parish School Board, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So.2d 33.

Writ denied: No error of law.

DIXON, J.,

dissents from the denial, being of the opinion the Court of Appeal was clearly wrong in calling a non-teaching personnel director, whose duties did not even require him to see or communicate with a student, a “member of the teaching staff.”

CALOGERO, J.,

would grant the writ.


author: DIXON, J.,

text:
    Gary MALCOMB et al. v. HUMPHRIES MOTORS et al.
    No. 60330.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Gary Malcomb, et al. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of LaSalle. 347 So.2d 1.

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

DIXON, J.,

dissents from the denial and would grant the writ.


text:
    Bobbie Gene DUNN v. GLEN D. LOWE CO. et al.
    No. 60290.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Glen D. Lowe Co., et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of LaSalle. 346 So.2d 1337.

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


text:
    STATE of Louisiana v. David MILLER.
    No. 60285.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: David Miller applying for writs of certiorari and review.

Writ denied. There is some evidence to support the trial judge’s determination.


text:
    STATE of Louisiana v. Billy Ray HOLMES.
    No. 60293.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Billy Ray Holmes applying for writs of certiorari, prohibition, mandamus, review, and stay order.

Writ denied. No merit in the application.


text:
    STATE of Louisiana v. Hillward J. FRUGE.
    No. 60294.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Hillward J. Fruge applying for writ of certiorari or review.

Writ denied. We find no error of law in the ruling of the trial judge.


text:
    Robert BOHM, d/b/a Bob’s Construction v. CIT FINANCIAL SERVICE, INC.
    No. 60302.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Robert Bohm, d/b/a Bob’s Construction applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany. 348 So.2d 132.

Writ denied. The judgment of the court of appeal is correct.


text:
    W. H. COX, II v. SOUTHWESTERN ELECTRIC POWER CO. et al. HARTFORD FIRE INS. CO. v. W. H. COX, II, et al.
    No. 60303.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Hartford Fire Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo.

Application denied; no error of law in the judgment of the Court of Appeal.


text:
    STATE of Louisiana v. Anthony CANNATELLA et al.
    No. 60317.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Writ denied. Ruling of trial judge is correct.


text:
    Chester CORLEY and Hazel Lee Corley v. Eric E. WEST, Individually and as Administrator of the Estate of his minor daughter, Lisa Bea West.
    No. 60318.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Chester Corley and Hazel Lee Cor-ley applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 346 So.2d 1272.

Writ denied.


text:
    Succession of Zoe Thibodeaux MATTE.
    No. 60319.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Mildred Marie Matte Arsement applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 346 So.2d 1351.

Writ refused. On the facts found by the court of appeal, the result is correct.


text:
    Lorraine JOBSON v. Donald HODGE.
    No. 60320.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Lorraine Jobson applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So .2d 57.

Writ denied. Under the particular facts and circumstances, there is no error in the result.


text:
    Donald Glenn DOWDEN v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 60325.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Liberty Mutual Insurance Co., et al. applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 346 So.2d 1311.

Writ denied. The result is correct.


text:
    Alex THIBO et ux. v. AETNA INSURANCE CO. et al.
    No. 60326.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Alex Thibo and Katherine Thibo, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 347 So.2d 20.

Writ denied. On the facts found by the Court of Appeal majority opinion, the result is correct.


text:
    Dejean BROUSSARD v. Robert L. WATERBURY.
    No. 60329.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Robert L. Waterbury applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 346 So.2d 1342.

Writ denied: No error presented by the assignments of error urged.


text:
    Wilton Robert CASON v. Rex J. CHAMPAGNE.
    No. 60333.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Wilton Robert Cason applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia. 346 So.2d 1309.

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


text:
    O. L. WRIGHT v. French WRIGHT, Administrator for the J. L. Wright Succession; and Ind., Barbara Jean Wright Blood, Linda Wright Ledford and Gloria Wright Gordon.
    No. 60337.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: O. L. Wright applying for Certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Catahoula. 346 So.2d 1293.

Application denied; no error of law in the court of appeal judgment.


text:
    STATE of Louisiana ex rel. Harold DELOACH v. Hon. Alvin V. OSER, Judge Criminal District Court, Section “J” Parish of Orleans.
    No. 60502.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Harold DeLoach, applying for writ of mandamus.

Granted; trial judge is ordered to act on the petition for habeas corpus, a copy of which is enclosed.


text:
    STATE of Louisiana ex rel. Gerald J. THIBODEAUX v. H. Charles GAUDIN, Judge, Division “G”, Parish of Jefferson.
    No. 60516.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Gerald J. Thibodeaux applying for writ of mandamus.

Writ denied in part and not considered in part: The trial judge’s return reflects that he denied the motion to remand on August 1, 1977. As to habeas corpus, it appears that no habeas corpus petition has been filed in district court.


text:
    AMERICAN BANK AND TRUST CO., Pennsylvania General Ins. Co., Gamm, Greenberg and Kaplan, Cumberland Capital Corp. v. Robert E. BYRON et al. CUMBERLAND CAPITAL CORP. v. PENNSYLVANIA GENERAL INS. CO.
    No. 60286.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: American Bank and Trust of Cous-hatta, applying for certiorari or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So.2d 850.

Application not considered; there was no timely application for rehearing in the Court of Appeal.


text:
    STATE ex rel. James Edward HILL, Jr. v. Harold M. TERRY, Sheriff of Caddo Parish.
    No. 60760.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: James Edward Hill, Jr. applying for writs of habeas corpus.

Not considered — The petitioner did not present a claim for relief to the trial court. In addition, the petitioner’s appeal is pending in this Court, docket No. 60175 and is set for argument on November 21, 1977.


text:
    B. L. SHAW v. CADDO PARISH SCHOOL BOARD.
    No. 60312.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: B. L. Shaw applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So.2d 39.

Writ denied. The result is correct.

DIXON, J.,

is of the opinion the writ should be granted.


author: DENNIS, J.,

text:
    Frank RICHARDS v. Thelma Ford MARLOW et al.
    No. 60304.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Frank Richards, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Tensas. 347 So.2d 281.

Writ denied. The result is correct.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    Lewis E. JOHNSON v. CAPITOL CITY PRESS, INC., et al.
    No. 60248.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Lewis E. Johnson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 819.

Writ denied. Judgment of Court of Appeal is correct.


author: TATE, J.,

text:
    STATE of Louisiana v. Dennis JOHNSON.
    No. 60740.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Dennis Johnson, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ not considered. Not timely filed.

TATE, J.,

concurs. The initial delay within which to file this application expired on September 1st. An extension was not granted until September 28th. Although I disagree with the interpretation we have held that the trial court does not have jurisdiction to grant an extension after one initial or properly extended delay has expired.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Joe A. CATANESE.
    No. 60749.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Joe A. Catanese, applying for writ of review.

Writ granted. Evidentiary hearing ordered.

SUMMERS, J.,

dissents from the granting of this hearing. The motion upon which the ruling is based is devoid of any factual allegations which warrants the granting of this hearing. The ruling of the trial judge is correct.


text:
    Peggy Jean Sharp Chappuis BABER v. Winston C. BABER.
    No. 60744.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Peggy Jean Sharp Chappuis Ba-ber, applying for writs of certiorari, review, mandamus and prohibition.

Writ granted. It is ordered that Winston C. Baber answer Interrogatory 19 in accordance with relator’s request.

SUMMERS, J.,

dissents from the granting of this writ. On the showing made there is no error in the ruling of the trial judge and the Court of Appeal.


text:
    Vertie L. HOLLIDAY v. Andrew S. HOLLIDAY.
    No. 60298.
    Supreme Court of Louisiana.
    Oct. 7, 1977.
   In re: Vertie L. Holliday applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoch-es. 346 So.2d 1382.

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:
    Dr. Doyle F. PHILIPPE v. BROWNING ARMS COMPANY et al.
    No. 60778.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
   In re: Browning Arms Company, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Franklin.

Writ denied. No abuse of discretion.


text:
    STATE of Louisiana v. James W. FRIDDLE.
    No. 60792.
    Supreme Court of Louisiana.
    Oct. 11, 1977.
   In re: James W. Friddle applying for writs of certiorari, prohibition, mandamus and stay order.

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

TATE, DIXON, and CALOGERO, JJ., concur, since there is an adequate remedy by review in the event of conviction.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Earl MALVEAUX.
    No. 60777.
    Supreme Court of Louisiana.
    Oct. 11, 1977.
   In re: Earl Malveaux applying for writs of certiorari, prohibition or mandamus.

Writ granted. Bond reduced to $7500.

SANDERS, C. J.,

dissents from the reduction of the bond.

SUMMERS, J.,

dissents from the reduction of the bond. There was no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana v. James JURGENSMIER.
    No. 60806.
    Supreme Court of Louisiana.
    Oct. 12, 1977.
   In re: James Jurgensmier applying for writs of certiorari, review and mandamus.

Writ granted. Trial judge ordered to permit Dr. J. Thomas Ungeleider to testify on October 14, 1977, or to allow his deposition to be taken and received in evidence in lieu of his testimony. Thereafter, trial judge should reconsider his rulings on defendant’s motions to quash and suppress in view of the additional evidence.

SANDERS, C. J.,

dissents from granting of the writ.

SUMMERS, J.,

dissents. See the reasons assigned in No. 60805.


text:
    STATE of Louisiana v. Mark CHRISMAN.
    No. 60805.
    Supreme Court of Louisiana.
    Oct. 12, 1977.
   In re: Mark Chrisman applying for Writs of Certiorari, Review and Mandamus.

Writ granted. Trial judge ordered to permit Dr. J. Thomas Ungeleider to testify on October 14, 1977, or to allow his deposition to be taken and received in evidence in lieu of his testimony. Thereafter, trial judge should reconsider his rulings on defendant’s motions to quash and suppress in view of the additional evidence.

SANDERS, C. J.,

dissents from the granting of the writ.

SUMMERS, J.,

dissents from this ex parte decree on the question of admissibility of evidence upsetting the ruling of the trial judge. Applicant has an adequate remedy by review in the event of conviction and this court should not interfere with the orderly proceedings in the trial court in the absence of palpable error, irreparable injury or great harm. Neither of these has been shown here.


author: SANDERS, C. J., and MARCUS, J.

text:
    Bobby W. HARRIS v. Charles JUGE et al.
    No. 60788.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
   In re: Bobby W. Harris, applying for writs of mandamus, prohibition and supervisory writs.

Application denied: there is not sufficient showing that applicant will suffer irreparable injury from the ruling complained of.

SANDERS, C. J., and MARCUS, J.

concur in denial being of the opinion that the trial judge has not abused his discretion.


author: LEMMON, Judge. GULOTTA, Judge,

text:
    Mrs. Bertha SANCHEZ v. AETNA LIFE INSURANCE COMPANY.
    No. 8338.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Writ Not Considered Oct. 21, 1977.
    Dufour, Levy, Marx, Lucas & Osborne (Patrick Rankin), New Orleans, for Bertha Sanchez.
    George W. Giacobbe and Frank P. Letellier, II (George W. Giacobbe), New Orleans, for Dolores Jacobsen.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

This is a concursus proceeding to determine entitlement to the proceeds of a group life insurance policy issued to Alcide Sanchez. After Sanchez died in 1973, the proceeds were claimed by Mrs. Bertha Sanchez, his widow, and by Mrs. Dolores Jacobsen, his daughter from a previous marriage. The sole issue is whether Sanchez validly changed the policy beneficiary in 1971.

The policy contained the following pertinent provision:

“The Employee may change his designation of beneficiary as often as desired by written request filed at the Headquarters of the Employer or at the Home Office of the Insurance Company.”

When Sanchez was first employed by the policyholder-employer in 1950, he designated his then wife, Hester, as beneficiary under the group policy. This designation was evidenced by the signed and dated card form request for group insurance, which was filed with the employer. That card was introduced into evidence as Exhibit J-3A and is reproduced below:

Exhibit J-2, also filed with the employer, was signed, witnessed and dated in 1964 and evidenced Sanchez’s intention to change the beneficiary upon his remarriage in that year to Bertha Sanchez. However, when Sanchez died, that card had been altered by someone scratching through the name of Bertha L. Sanchez and noting “see other side”, as shown.

The reverse side of Exhibit J-2 contained only instructions to the employer. However, Exhibit J-2 was attached to Exhibit J-3, and the reverse side of Exhibit J-3A (the original request for group insurance) contains the name of Bertha Jacobsen. The reverse side of Exhibit J-3A is reproduced below:

On Exhibit J-3B Mrs. Sanchez identified the signature as that of her husband, and the employer’s personnel manager identified the handwriting on the line dated February 16, 1971 as that of an office clerk. There was no other evidence of Sanchez’s intention to change the policy beneficiary in 1971 from Bertha Sanchez to Dolores Jacob-sen.

The policy requires a written request for change of beneficiary by the employee. Of course, the request may be typed or written by hand by someone else, but must be executed by the employee.

Sanchez’s signature appears in the “Dependents Cancelled” section on Exhibit J-3B, but that section does not list a date or the name of the dependent cancelled. On the other hand, the “Dependents Added” section is dated and contains the name of the person named as a dependent in 1964, but does not contain a signature. Furthermore, there was no designation of beneficiary card executed in 1971, as had been done in 1964, and such a card (with spaces for the signatures of the insured and a witness and for the date of signature) was apparently designed by the company and the insurer for use in avoiding the exact type of dispute which occurred here.

The burden of proving the validity of the alleged change of beneficiary in 1971 is on Mrs. Jacobsen, whose claim is based on that change. While it is arguable that Sanchez’s undated and unwitnessed signature on Exhibit J-3B was executed on February 16,1971 to request a second change of beneficiary, it is at least equally probable that the signature was executed in 1964 in connection with the request to designate Mrs. Bertha Sanchez as beneficiary.

Proof is sufficient to constitute a preponderance when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (La.1971). Since either inference is equally probable in this case, the evidence does not preponderate in favor of a conclusion that the pertinent signature was executed in 1971 to request a change of beneficiary to Dolores Jacobsen.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered in favor of Mrs. Bertha Sanchez, recognizing her entitlement to the proceeds in the registry of court. Costs of the appeal are to be deducted from the money on deposit. C.C.P. art. 4659.

REVERSED AND RENDERED.

GULOTTA, J., concurs and assigns reasons.

GULOTTA, Judge,

concurring.

I concur. The mere subsequent addition of a name on a document indicating a change of beneficiary, placed there by a third party without the named insured’s signature indicating assent, does not meet the policy requirements to effect a change of beneficiary. A different result conceivably could open the door to allow fraud in these cases. We are mindful, however, that no fraud is charged or indicated in the instant case. Nevertheless, I concur with the result.

      . Exhibit J-3 has two sides, each containing pertinent evidence, and for purposes of this opinion the sides are marked J-3A and J-3B.

      . The policy and the form cards provide the option of naming multiple beneficiaries. Arguably, the “Dependents Added” and “Dependents Cancelled” sections of the card are intended for use when the insured desires to add or drop an additional beneficiary and not for use in changing single beneficiaries.

      . The employee who entered the name of Dolores Jacobsen on Exhibit J-3B was not called to testify.


author: BOWLING, Justice,

text:
    CITY OF JACKSON v. DeSOTO, INC., d/b/a MPI Industries.
    No. 50143.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Rehearing Denied Oct. 26, 1977.
    See also Miss., 350 So.2d 686.
    Bacon, Smith & Jernigan, William A. Bacon, John E. Stone, Jackson, for appellant.
    Watkins & Eager, Thomas H. Watkins, Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This is a suit by the City of Jackson to cancel an expanded manufacturing facility exemption previously granted to DeSoto, Inc., d/b/a MPI Industries, and to assess back taxes. City of Jackson entered an order cancelling the exemption and assessing back taxes on March 24, 1976. MPI appealed this order to the Circuit Court of the First Judicial District of Hinds County, which reversed the order of the City of Jackson both as to cancellation of the exemption and as to assessment of back taxes. We reverse the circuit court as to suspension of the exemption, affirm the court as to assessment of back taxes, and render judgment.

The issues presented on appeal are: (1) When a manufacturer is granted an exemption on a new building under Mississippi Code Annotated section 27-31-105 (1972), which provides exemption for additional or expanded manufacturing facilities, is that exemption lost when the manufacturer leases the new building to another corporation for use as a free port warehouse; and (2) if the exemption is lost, may the City back assess the manufacturer for the amount of the exemptions previously given?

MPI has for many years operated a large manufacturing plant in the City of Jackson. In 1972, MPI constructed a large warehouse type building adjacent to its manufacturing plant. In October of that year, MPI requested an exemption on the building and fixtures as an additional or expanded property under Code section 27-31-105 (1972).

In December, 1972, DeSoto Free Port Warehouse, Inc., was granted a charter of incorporation, and on December 29, 1972, the City of Jackson was notified by attorneys for the Warehouse of the incorporation, that Warehouse had been licensed as a free port warehouse by the State Tax Commission, and that Warehouse had “certain agreements” with MPI whereby products manufactured by MPI would be consigned to the Warehouse. The notification indicated that the warehouse building to be leased from MPI and operated by DeSoto Free Port Warehouse was the same building for which MPI requested an exemption as an expanded facility.

MPI’s petition for exemption as an additional facility was granted by the City of Jackson on February 6, 1973, to become effective back to January 1, 1973. This tax exemption continued in effect until March 24, 1976, when it was cancelled or suspended by the City of Jackson. In its order the City of Jackson ruled that since MPI had leased the facility to DeSoto Free Port Warehouse, Inc., to be used as a warehouse, it could no longer qualify as an “expanded manufacturing facility.” The order can-celled the exemption and directed that there be a back assessment of ad valorem taxes against the property in question for the years 1973, 1974, and 1975.

The first question presented is essentially a matter of statutory construction. The determination as to whether MPI lost its exemption is controlled by the statutory scheme defining what the exemption is (Code section 27-31-105), when the exemption may be suspended (Code section 27-31-111), or cancelled (Code section 27-31-113).

Code section 27-31-105 grants the exemption to manufacturers “who make additions to or expansions of the facilities or properties used in connection with or necessary to the operation of such enterprise

Code section 27-31-111 states that the exemption once granted will be suspended when there is a “cessation of manufacturing operations.”

Code section 27-31-113 provides for cancellation of the exemption if, among other things, “the industry does not meet the definitions of a manufacturing industry

These three statutes taken together indicate that the exemption was intended for new but integrated parts of a manufacturing concern. The converse, illustrated by the suspension and cancellation statutes, is that if the new addition ceases to be a part of the manufacturing process, the exemption is susceptible to revocation.

In the present case, it is admitted that while MPI, the manufacturer, does consign its products to the warehouse, the warehouse itself is run by a separate corporation, as a free port warehouse. Thus, the “new facility,” i. e., the building, presently, is not a part of the manufacturing process. It neither manufactures anything, nor does it house equipment or other fixtures used in the manufacturing process, nor is it operated by the manufacturer, MPI.

Based on these facts and the controlling statutory language, City of Jackson was acting within its discretionary power in finding the newly constructed building had ceased to qualify for the exemption.

The matter of assessment of back taxes is in similar manner controlled by the language of the statutes. Both statutes concerning loss of the exemption once granted (section 27-31-111 on suspension, and section 27-31-113 on cancellation) speak in prospective, not retrospective, language, and neither should be construed as penal in nature.

At the time the exemption was granted, the City was aware of all the facts regarding the nature of the transaction between MPI and Warehouse, including the fact that there existed a lease agreement between the two corporations. The City of Jackson granted an exemption with full knowledge in 1973, yet did not make a determination of suspension or cancellation until March 24, 1976. There was no change in the fact situation between those dates, nor are there any suggestions of fraud on the facts.

Under the language of Code section 27-31-111 and the present facts, the exemption was not suspended or cancelled until the determination of March 24, 1976, and became effective on that date. The City may not back assess for the period prior to that date. Cf. Meador v. Mac-Smith Garment Co., 188 Miss. 98, 191 So. 129 (1939).

Since the City of Jackson properly determined that the exemption of MPI should be terminated, the judgment of the lower court is reversed to that extent. Since the statutes on termination of the exemption are not penal in nature, and on the facts as presented there is no fraud, the judgment of the lower court is affirmed to the extent it denied back assessment of taxes for 1973, 1974, and 1975.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    CITY OF JACKSON, Mississippi v. DeSOTO, INC., d/b/a MPI Industries and DeSoto Free Port Warehouse, Inc.
    No. 50144.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Rehearing Denied Oct. 26, 1977.
    See also Miss., 350 So.2d 684.
    Bacon, Smith & Jernigan, William A. Bacon, John E. Stone, Jackson, for appellant.
    Watkins & Eager, Thomas H. Watkins, Jackson, for appellee.

      Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This is a suit for refund of taxes erroneously paid. On March 4,1976, DeSoto, Inc., d/b/a MPI Industries, petitioned the City of Jackson for a refund of personal property ad valorem taxes erroneously paid. City of Jackson denied the petition and MPI appealed to the Circuit Court of the First Judicial District of Hinds County. The circuit court reversed the decision of the City of Jackson. We affirm the decision of the circuit court.

This case presents two basic issues: (1) When the Mississippi Tax Commission issues a license qualifying a corporation as a free port warehouse under Mississippi Code Annotated sections 27-31-51 through 27-31-61 (1972), may a municipality revoke that license and assess an ad valorem tax when it finds the corporation did not comply with regulations of the Tax Commission; and (2) if the municipality may not void the license, does the warehouse waive its right to protest the assessment by failure to appeal the assessment pursuant to Mississippi Code Annotated section 11 — 51— 77 (1972)?

Appellee, DeSoto, Inc., d/b/a MPI Industries, constructed a large warehouse in 1972. In December, 1972, it leased the building to DeSoto Free Port Warehouse, Inc., a Mississippi corporation. Warehouse applied to and received from the Mississippi State Tax Commission a license to operate as a “free port warehouse” for 1973 under the provisions of Mississippi Code Annotated sections 27-31-51 through 27-31-61 (1972). This license was renewed by the Tax Commission for the year 1974.

The City of Jackson recognized this license and granted Warehouse the statutory exemption for 1973. In 1974, however, the City of Jackson determined that Warehouse had not complied with certain rules and regulations adopted by the State Tax Commission as authorized by statute. Because of this failure, City assessed MPI for ad valorem taxes in the sum of $144,695.36 on personal property of MPI consigned to Warehouse. By lease agreement, Warehouse, though an independent corporation, admittedly operated its facilities mainly to receive manufactured products of MPI for interstate shipment. MPI paid the assessment without protest, but in 1976 petitioned for refund of $140,354.53, alleging that amount was exempt under the free port warehouse exemption statute.

City of Jackson contends the license issued by the State Tax Commission to Warehouse was void because Warehouse did not timely file inventories and other documents as required by Tax Commission’s rules. Inherent in this contention is that City of Jackson has the power to void a license issued by the State Tax Commission if the City finds the Commission’s own rules were not followed.

Mississippi Code Annotated section 21-31-57 (1972) grants the State Tax Commission “full power and authority” to accomplish the purpose of the free port warehouse licensing and tax exemption. It further explicitly states that if a violation is found, then the license may be revoked “by the state tax commission." (Emphasis added.)

The only language in the statute that could imply a right in the City is that which allows the “taxing authorities in the jurisdiction” to inspect the records of the warehouse. In the face of the express language granting broad authority to the Tax Commission, the authority to inspect records granted the City must be limited to its clear meaning, i. e., the right to inspect and report to the Tax Commission any errors it might find, leaving to the Tax Commission the decision to revoke or not revoke a license once granted. It is a long established rule that cities have no powers except those granted by the Legislature, Seward v. City of Jackson, 165 Miss. 478, 144 So. 686 (1932), and Code section 27-31-57 expressly grants the power of revocation to the Tax Commission, not to municipalities.

City of Jackson further contends that even if it could not revoke the license, MPI waived the right to a refund by failure to protest the assessment in 1974 and appeal the Board’s assessment to the circuit court pursuant to Code section 11-51-77 (1972). While that section does provide for appeal from assessments to the circuit court, and some cases have held failure to appeal waives the assessment [see Yazoo Delta Invest. Co. v. Suddoth, 70 Miss. 416, 12 So. 246 (1892)], the Mississippi Legislature in 1926 passed what is now Code section 21-33-79 (1972). That section authorizes a municipality to refund erroneously paid taxes upon petition of applicants, and Code section 21-33-83 (1972) provides for appeal of that decision to a circuit court.

Here, the exemption required by law would have been to DeSoto Free Port Warehouse, yet the assessment was to MPI Industries. MPI erroneously paid the assessment, then subsequently petitioned for refund and appealed that decision under Code section 21-33-83. That was the correct statutory procedure under the facts of the present case. Cf. Stegall v. City of Jackson, 191 So.2d 134 (Miss.1966).

Since under the facts the correct statutory method of appeal was followed, and since under Code section 27-31-57 (1972) the power to revoke a free port warehouse license is in the Tax Commission and not within the power of municipalities, the judgment of the lower court is therefore affirmed.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Mary Wyche BOUDREAUX v. STATE of Mississippi.
    No. 49892.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Rehearing Denied Oct. 26, 1977.
    Gwin & Gwin, R. Brent Bourland, Natchez, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   AFFIRMED.


text:
    Blanche REXFORD v. Patricia ROWELL.
    No. 49624.
    Supreme Court of Mississippi.
    Sept. 14, 1977.
    Rehearing Denied Oct. 26, 1977.
    James Sideris, Gulfport, for appellant. Hawkins & Henry, Joe Ben Hawkins, Biloxi, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Mrs. Bill JENKINS v. V. W. SAVELL, d/b/a Savell Body Shop, et al.
    No. 50214.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Rehearing Denied Oct. 26, 1977.
    Laurel G. Weir, Philadelphia, for appellant.
    Alford, Mars & Thomas, Robert L. Thomas, Philadelphia, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    G. D. THOMPSON, Jr. v. STATE of Mississippi.
    No. 49891.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Rehearing Denied Oct. 26, 1977.
    Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ.


text:
    Shelia JOHNSON v. Ricky W. WITCHER, a minor, and Bob Witcher.
    No. 49616.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Rehearing Denied Oct. 26, 1977.
    Mitchell, Rogers, Eskridge, Voge & Clayton, Claude F. Clayton, Jr., Tupelo, for appellant.
    Bramlett, Mounce & Soper, Paul Kent Bramlett, Tupelo, for appellees.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


author: ROBERTSON, Justice,

text:
    MILLER TRANSPORTERS, INC. and Fireman’s Fund Insurance Company v. DEPENDENTS of Daniel L. SEAY.
    No. 49664.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Rehearing Denied Oct. 26, 1977.

      Daniel, Coker, Horton, Bell & Dukes, Joel W. Howell, III, Jackson, for appellants.
    Bridgforth, Love, Norquist & Stewart, Bradford M. Stewart, Yazoo City, for appel-lees.
    Before INZER, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court:

This is a workmen’s compensation case. The administrative judge found:

“That at the time of his death, Daniel L. Seay, was proceeding to his place of employment in his own private vehicle for which he was not reimbursed any mileage expense, and that this vehicle crashed, resulting in fatal injuries to Mr. Seay; therefore, the decedent’s death did not arise out of and in the course and scope of his employment with Millers Transporters, Inc.”

He, therefore, denied the claim of the dependents of Daniel L. Seay, deceased, for full death benefits against the employer and carrier. The full Commission affirmed the order of the administrative judge.

On appeal, the Circuit Court of Yazoo County reversed the order of the full Commission, and found:

“[T]hat the deceased was killed while accommodating the employer in an emergency situation after he had completed his week’s work and was taking off the next day or the seventh day of the work week, . .

and that Seay’s dependents were entitled to recover full death benefits.

The sole question is whether or not the death of Daniel L. Seay arose out of and in the course of his employment with Miller.

Seay was employed as a truck driver by Miller Transporters, Inc., and worked out of the Yazoo City-Crupp terminal. At approximately 3:30 A.M., Friday morning, September 13, 1974, Seay received a phone call from C. C. Mauldin, dispatcher for Miller. Mauldin told Seay that Billy Thomas had just called in sick and could not take a load of asphalt to Dundee, Mississippi. Mauldin testified:

“I asked him if he wanted it. He asked where Dundee was. I got out my maps and guided him to it there. And he said that yeah, he’d take it so — ”

Mauldin further testified that he was calling in accordance with the dispatch procedure set up under the union contract which guaranteed Seay a minimum of $155.60 per week. Section 20.9 of the labor agreement also provided:

“The guarantee will be valid only if the driver makes himself available for duty six (6) days out of the work week. The guarantee applies to all drivers who have been on the payroll thirty (30) days or more.”

The testimony was uneontradicted that Seay had completed his work week and that a new week would not begin until Saturday, September 14th.

Mauldin also testified:
“Q. Assuming in this particular case that Mr. Thomas was sick, was it compulsory that Mr. Seay accept this assignment or did he have a choice in the matter?
“A. No, he had a choice. I had other people not working.
“Q. So this was purely a voluntary acceptance on his part, is that right?
“A. Yes, that’s a good load.”

The labor agreement also provided that when a driver is called after cutoff time (6:00 P.M.) that he shall be paid a minimum guarantee of four (4) hours pay at the regular hourly rate of pay.

Mauldin stated that this was about a four-hour trip one way, and at least an eight-hour round trip. So this was a good assignment.

Seay was driving his own van on his regular route, old Highway 3, to the Yazoo City-Crupp terminal, which was about 10 miles from his home, when on a straight stretch of the highway he apparently went to sleep and was killed when he ran into a cedar tree approximately 140 yards from the entrance to the terminal.

The general rule with reference to going to or returning from work is stated in Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 174 So.2d 495 (1965):

“This Court is firmly committed to the general rule that the hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compensable. Wallace v. Copiah County Lumber Company, 223 Miss. 90, 77 So.2d 316 (1955); Dunn, Mississippi Workmen’s Compensation § 103 (1957). And an employee who claims an exception to this general rule has the burden of proving that he comes within one of the exceptions. Edward Hyman Co. v. Rutter, 241 Miss. 301, 130 So.2d 574 (1961).” 252 Miss, at 858, 174 So.2d at 497.
See also: Dunn, Mississippi Workmen’s Compensation, section 175 (2nd Ed. 1967), at pages 232, 233.

One of the exceptions to this general rule is where the employee is on a special mission or errand for his employer or where he is accommodating his employer in an emergency situation. The circuit court, acting as an appellate court, in its opinion made this observation:

“The Court certainly can take judicial knowledge, although the record is silent, that this asphalt ‘had to roll’.”

and then found:

“[T]hat the deceased was killed while accommodating the employer in an emergency situation after he had completed his week’s work and was taking off the next day or the seventh day of the work week.”

The testimony does not support the circuit court’s observation or finding. Where the uncontradicted testimony was that it was a four-hour trip to Dundee, the asphalt did not “have to roll” and there was no emergency situation.

Also, there was no pressure on Seay to accept this load. It was free and voluntary on his part and he apparently accepted it because it was a good-paying load.

Mrs. Jacquelyn S. Seay, his widow, testified on direct examination:

“A. They called him and asked him if he wanted this load.
“Q. And he accepted the load?
“A. He accepted the load.”

Then, on cross-examination, she testified:

“Q. It was not unusual for Mr. Seay to receive telephone calls during the night to go out on a load, was it?
“A. No sir.
“Q. This was a customary — not customary, but not an unusual procedure at all.
“A. No.”

There was substantial evidence supporting the full Commission’s finding that “the decedent’s death did not arise out of and in the course and scope of his employment with Millers Transporters, Inc.” The circuit court, acting as an appellate court (on the record only) should not have reversed the Order of the Commission.

The Order of the circuit court is, therefore, reversed, and the Order of the Workmen’s Compensation Commission reinstated.

REVERSED AND RENDERED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and SUGG, WALKER, BROOM and LEE, JJ., concur.

BOWLING, J., took no part.


text:
    MID-CONTINENT AIRCRAFT CORPORATION and Georgia Pacific Corporation v. Truman WHITEHEAD.
    No. 50178.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Fair & Mayo, James C. Mayo, Louisville, Robert L. Crook, Ruleville, for appellant.
    Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   MOTION TO STRIKE SUSTAINED, APPELLEE GIVEN THIRTY DAYS IN WHICH TO FILE CORRECTED SUPPLEMENTAL ABSTRACT OF THE RECORD.

INZER and SMITH, P. JJ., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


text:
    Byrl L. LEHNUS v. STATE of Mississippi.
    No. 49894.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Rehearing Denied Oct. 26, 1977.
    Amos & Amos, Olive Branch, B. T. Jack Amos, Bay Springs, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    MARION COUNTY COOPERATIVE (AAL) v. Mrs. Enoch WATSON.
    No. 49705.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Rehearing Denied Oct. 26, 1977.
    Clyde Ratcliff, McComb, for appellant.
    Sebe Dale, Columbia, for appellee.
    Before INZER, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.