author: DENNIS, Justice.

text:
    STATE of Louisiana v. Norris HENDERSON and Clarence Henderson.
    No. 58312.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      William J. O’Hara, III, Supervising Atty., New Orleans, David Foshee, Jack Hoffs-tadt, Student Practitioners, for defendants-respondents.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph Meyer, Jr., Asst. Dist. Atty., for plaintiff-relator.
   DENNIS, Justice.

On July 31, 1975, the Orleans Parish Grand Jury indicted defendants, Norris Henderson and Clarence Henderson, for the crime of second degree murder, a violation of La.R.S. 14:30.1. In a pre-trial motion, Norris Henderson, an indigent, sought compulsory process of several out-of-state witnesses and requested that the State assume the cost of their transportation. After making an in camera inspection of the evidence to be used against defendants and receiving substantial evidence that the desired witnesses would aid in the defense of Norris Henderson, the court granted his motion. Because of defendant’s indigency and the indigency of the out-of-state witnesses, the court further ordered the district attorney for the Parish of Orleans to provide monies from the District Attorney’s Fines and Forfeitures Fund for the transportation, lodging and meals of three defense witnesses. Upon application by the State, we granted writs to consider the propriety of the latter ruling.

The State does not contest defendant’s right to secure the attendance of these witnesses at trial or to have the expenses of their appearance provided for him, La. Const.1974, Art. I, § 16, but it argues that the trial court did not requisition money from the correct source for this purpose. Our review of the applicable law brings us to a similar conclusion.

Louisiana Code of Criminal Procedure Articles 741-45 provide for obtaining witnesses from outside the State, but these articles do not say from which source the witness fees and travel expenses are to be paid. However, the legislative intent is clear that, with regard to indigent defendants, these provisions are to be read in pari materia with Articles 738 and 739 of the Louisiana Code of Criminal Procedure.

Louisiana Code of Criminal Procedure Article 738 provides:

“At a trial or hearing, each defendant in a misdemeanor case shall be allowed to summon six witnesses at the expense of the parish, and in a felony case twelve witnesses. A defendant shall have the right of compulsory process for additional witnesses at his own expense.” (Emphasis supplied.)

Louisiana Code of Criminal Procedure Article 739 provides:

“If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, he shall make a sworn application to the court for the additional witnesses. The application must allege that the testimony is relevant and material and not cumulative and that the defendant cannot safely go to trial without it.
“The court shall make a private inquiry into the facts, and if satisfied that the defendant is entitled to the privilege, it shall render an order permitting the defendant to subpoena additional witnesses at the expense of the parish. If the application is denied, the court shall state the reasons for the denial in writing, which shall become part of the record.” (Emphasis supplied.)

If the court renders an order to obtain witnesses outside the state for an indigent defendant, these articles suggest that the expenses necessitated thereby shall be paid directly by the parish, and not from a criminal court fund or special account of the court, of which the parish may indirectly be the beneficiary. Furthermore, La.R.S. 15:304 specifically provides that “the pay of witnesses, jurors, and all expenses whatever attending criminal proceedings shall be paid by the respective parishes in which the offense charged may have been committed or by the City of New Orleans.” (Emphasis supplied.)

Defendant argues, on the other hand, that these expenses should be paid from the special account of fines and forfeitures for defraying expenses of the criminal courts of Orleans Parish, in accordance with La.R.S. 15:571.11(D), which provides:

“All fines and forfeitures imposed in criminal cases and prosecutions by the courts of Orleans Parish shall, upon collection, be paid to the district attorney of Orleans Parish who shall deposit same in a special account to be used in defraying the expenses of the criminal courts of the parish, extraditions and such other expenses pertaining to the operation of the criminal courts of Orleans Parish and the office of the district attorney of Orleans Parish as in his discretion may be necessary. Provided, that any surplus remaining in said special account or fund on December 31st of each and every year shall be distributed as follows: one-half to be retained by the district attorney of Orleans Parish, to be used as hereinabove set forth, and the other half to be remitted to the city of New Orleans. No money shall be paid out of this fund except upon motion by the district attorney of Orleans Parish and approval by a judge of the criminal district court of Orleans Parish. A copy of said motion must be served on the budget officer of the city of New Orleans twenty-four hours prior to the approval thereof by the judge. Said fund shall be annually audited by the director of finance of the city of New Orleans.”

In essence, this statute provides that payments out of the special account for defraying expenses of the criminal court shall be made upon approval of the district attorney and a judge of the Criminal District Court of Orleans Parish. The traveling expenses of out-of-state witnesses for indigent defendants logically fall within the class of expenses which the legislature intended may be paid with fines and forfeitures. Therefore, the defendant contends that neither the district attorney nor the court may arbitrarily withhold approval of these expenditures from the account.

We agree with defendant that neither agency of government may arbitrarily refuse to approve a proper expenditure from the special account. However, we do not understand the district attorney to claim untrammeled discretion over payments from the account. He merely urges that because the legislature has expressly provided for the payment of witnesses from another source, viz., the city of New Orleans, La.R.S. 15:304, such expenditures should be made therefrom, absent a showing that the source is insufficient or otherwise inaccessible. This does not mean that under different circumstances the district court would lack the power to require a particular agency or fund, or the State itself, to provide for payment of necessary expenses for the trial of indigent defendants. Cf. State v. Campbell, 324 So.2d 395 (La.1976). The court has full power, and more than one option, to enforce the indigent’s right to compel the attendance of witnesses. But where the legislature has provided an adequate method, and there is no necessity shown for departure from it, the court must follow the statutory mandate.

Accordingly, the trial court’s order is amended to provide that the City of New Orleans must bear the costs of lodging, transportation and meals for defendant’s . witnesses.

AMENDED AND, AS AMENDED, AFFIRMED.

       The statute provides in its entirety:
      “A. All fines and forfeitures imposed by district courts and district attorneys conviction fees in criminal cases and prosecutions, upon collection by the sheriff or executive officer of the court, shall be paid into the treasury of the parish in which the court is situated and deposited in a special ‘Criminal Court Fund’ account, which, on motion by the district attorney and approval order of the district judge, may be used or paid out in defraying the expenses of the criminal courts of the parish as provided in R.S. 13:692 and 13:1587 and R.S. 16:6, in defraying the expenses of those courts in recording and transcribing of testimony, statements, charges and other proceedings in the trial of indigent persons charged with the commission of felonies, in defraying their expenses in the preparation of records in appeals in such cases, for all expenses and fees of the petit jury and grand jury, for witness fees, for attendance fees of the sheriff and clerk of court, for costs and expenses of a parish law library, for expenses and fees of attorneys appointed to represent indigent persons under any public defender program, and for other expenses related to the judges of the criminal courts and the office of the district attorney; provided, however, that the sheriffs throughout the state, the parish of Orleans excepted, shall retain twelve percent of the amount of fines collected or the amount of bonds forfeited to go into the sheriffs salary and expense fund in each parish; and further provided, however, that an additional six percent of the amount of fines collected and the amount of bonds forfeited shall be transmitted to the district attorney of the judicial district to be used by the district attorney in defraying such expenses of his office as in his discretion may be necessary.
      “B. Notwithstanding the provisions of R.S. 13:692, R.S. 13:1587 and R.S. 16:6 and the other provisions of this section, a district judge of the State of Louisiana, except in the parishes of Calcasieu and Cameron, shall have the right to order the sheriff of the parish wherein his principal office is domiciled, to pay, on the voucher of that district judge alone, without the concurrence of the other judges of his district, and without motion of the district attorney, a salary for a secretary for that district judge’s office, which amount shall be paid by the sheriff prior to depositing the fines and forfeitures into the treasury of the parish.
      “C. One-half of any surplus remaining in said special account or fund on December 31st of each and every year shall be transferred to the parish general fund. No money shall be paid out of said special account except upon the order or warrant of the district judge and district attorney as above provided. Said fund shall be annually audited by the state supervisor of public funds or his deputies.” (Paragraph “D” is set forth above).


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE OF Louisiana v. Peter MANALE, Sr.
    No. 58333.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Thomas L. Giraud, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-relator.
   SANDERS, Chief Justice.

The State charged defendant, Peter Ma-nale, Sr., with “the crime of gambling as defined by R.S. 14:90, in .that he did unlawfully and intentionally conduct and directly assist in the conducting, as a business, at 919 Touro St., of a game, contest, lottery and contrivance, in that he did encourage, promote and aid divers persons whose names are unto your Assistant District Attorney aforesaid unknown, to bet and wager upon the results of running, trotting and pacing horse races, by the operation of a betting book, at a place other than within track or other enclosure where said horse races took place, whereby a person risked the loss of a thing of value in order to realize a profit. . .

Defendant, through counsel, filed a Motion to Suppress Evidence obtained from a search of 919 Touro Street, alleging that the warrant “was illegally issued in that the written affidavit attached to the application for the search warrant does not establish facts and circumstances which comprise probable cause for the issuance of the search warrant.”

After a hearing on the Motion to Suppress, the Magistrate granted the motion. On application of the State, we granted writs. La., 337 So.2d 532 (1976).

The sole issue is whether the affidavit contains sufficient facts to show probable cause for the issuance of the search warrant.

In State v. Vince, La., 305 So.2d 916 (1974), we stated:

“The decisions of the United States Supreme Court announce the principle that the showing [in the affidavit supporting the application for a search warrant] must contain sufficient underlying facts and circumstances to enable the magistrate to review them and make the essential probable-cause determination. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Paciera, La., 290 So.2d 681 (1974).”

“Probable cause” is deemed to exist when facts and circumstances within the affiant’s knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been or is being committed. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Hill, 500 F.2d 315 (5th Cir. 1974) cert. denied 420 U.S. 931, 95 S.Ct. 1135, 43 L.Ed.2d 404; United States v. Melancon, 462 F.2d 82 (5th Cir. 1972) cert. denied 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487. It is unnecessary for the affidavit to make out a prima facie case of the defendant’s guilt in order to justify the issuance of a search warrant. State v. Hightower, La., 272 So.2d 363 (1973).

The affidavit for the issuance of the search warrant was attested by Detectives Daniel Lawless and Stanford Barre of the New Orleans Police Department. Summarizing, the allegations in the affidavit include:

1. On the afternoon of February 5,1976, Officers Daniel Lawless and Stanford Barre of the Vice Squad, the two affi-ants, watched a man walk, from the direction of the nearby Fairgrounds Racetrack, to a pay telephone located in front of La Coca’s Grocery Store. There they saw him dial telephone number 945-4657 and place a bet by saying to the person who answered the phone, “Pete, how you been? Look, in the seventh exacta, box 1, 2, and 5 for three dollars.”
2. The next day, February 6, Officer Derbyshire checked with South Central Bell and learned that telephone number 945-4657 was listed to Rosa Manale at 919 Touro Street.
3. That same day Officers Barre and Lawless went to 919 Touro, where they saw a 1973 Plymouth bearing a license number which they found by checking through NCIC to be registered to Peter Manale, the accused herein, who lived at that address.
4. Officers Lawless and Barre then checked the police records and found that a Peter Manale of 919 Touro Street had been arrested in December of 1969 for gambling by operating a racehorse handbook in violation of Article 90 of the Criminal Code.
5. A few days later, on February 11, Officers Barre and Lawless saw Peter Manale, whom they recognized from a 1969 Bureau of Identification photograph, drive to the 100 block of University Place and park near Oliver’s News Stand, where he obtained and took home with him a copy of the latest Turf And Sports Mirror. (This publication contains all the entries at the race tracks in the country; the first ten races at the New Orleans Fairgrounds; the approximate time of the races; the jockeys and their weights; the names of the horses and their numbers; and the selection of the editors as to who the winner of each race will be and is used by bookmakers.)
6. That same afternoon Officer Barre dialed telephone number 945^4657 and when a male voice answered said, “Hey, Pete, is that you?” whereupon the response came: “Yea this is Pete; who’s calling?”

The affidavit in the present case is based upon the personal observations of the police officers. Their credibility, of course, was a matter to be determined by the issuing magistrate. The affidavit recites concrete facts in explicit detail. They are sufficient, in our opinion, to enable a detached magistrate to perform his function and to determine that probable cause existed for the issuance of a search warrant.

We hold that the search warrant is valid.

For the reasons assigned, the ruling of the magistrate sustaining the motion to suppress the evidence is reversed, and the case is remanded to the district court for further proceedings not inconsistent with the views herein expressed.


text:
    STATE of Louisiana v. Edward NOLAN.
    No. 58373.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Wilson R. Ramshur, Willis & Ramshur, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Branton, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, an inmate of Louisiana State Penitentiary, was indicted by the West Feli-ciana Parish Grand Jury for the second degree murder of a fellow prisoner. La. R.S. 14:30.1. Twelve jurors unanimously found defendant guilty of manslaughter and the court sentenced him to serve five years at hard labor consecutive to any previous sentence. On appeal, defendant urges nine assignments of error, one of which requires reversal of his conviction and sentence.

Following an extensive voir dire examination of a prospective juror, Mrs. Cornelius Doherty, defense counsel challenged her for cause. Upon the court’s refusal to excuse the juror for cause, defense counsel challenged her peremptorily and exhausted the remainder of his peremptory challenges before the panel was completed. See, La.C. Cr.P. art. 800. We find that the court erred in failing to sustain the challenge for cause.

The prospective juror, a woman of sixth grade education, vacillated in her responses and indicated an inability to understand the questions asked by the attorneys and the judge. On the presumption of innocence and defendant’s right not to testify in his own behalf, the following exchanges took place between the juror, counsel, and the court:

“[BY DEFENSE COUNSEL]:
“Q. Do you believe that the authorities at Angola would send a convict down here to St. Francisville for prosecution unless he was guilty? Do you believe that in your mind?
“A. No.
“Q. In your mind again, I am directing attention to what you believe in your mind emotionally. Do you think that a Grand Jury would indict a convict unless he was guilty?
“A. Yes.
“Q. Again, I ask you — you are close to an emotional level, what you feel about — the District Attorney’s office. Do you feel in your mind that if the District Attorney’s office prosecuted the convict that more than likely that he is guilty?
“A. I think so and he would not be on trial.
U * * *
“BY THE COURT:
“You understand Mr. [sic] Doherty that Mr. Nolan is on trial. We don’t know whether he is guilty or not guilty. I don’t know and you don’t know. The question was, ‘do you believe that merely because the District Attorney is going ahead with this trial that he is guilty’?
“A. I think he is guilty.
“BY THE COURT:
“How can you think he is guilty when — I don’t think you understand. This trial has not started yet. No witness has testified . Do you believe that merely because we are going to have a trial that the man is guilty because he is on trial?
“A. No.
“BY THE COURT:
“Do you understand that you and I are here to find out why Mr. Nolan is guilty or not guilty? Do you understand that?
“A. Yes.
“BY THE COURT:
“You don’t think he is guilty now? You don’t think is not guilty? You don’t know?
“A. I don’t know if he is guilty or what.
“BY THE COURT:
“Rephrase it.
“[BY DEFENSE COUNSEL]:
“Q. Mrs. Doherty, what I am asking you: do you have any emotional feeling in your mind that because the District Attorney’s office is prosecuting an inmate at Angola for a certain crime, that because of the fact that they are prosecuting him is an indication that more than likely he is guilty?
“A. If he is found guilty.
U * * *
“Q. Mrs. Doherty, I will ask you this question: assuming that someone is in trouble, do you think that if this individual is in trouble and he fails to speak up and tell his side of the story, it probably means that his side of the story is unfavorable to him?
“A. Yes.
“Q. One step further: do you think that failure of a man accused of wrongdoing, this is an emotional feeling on your part — in your mind — that the failure of a man accused of wrong-doing to explain his acts probably means that he is guilty?
“[BY ASSISTANT DISTRICT ATTORNEY]:
“I don’t thing she understands.
“BY THE COURT:
“She does not understand.
ft s|c *
“BY THE COURT:
“Do you understand Mr. Nolan does not have to testify. Would you hold it against him if he did not?
“A. No.
« * * *
“[BY DEFENSE COUNSEL]:
“Q. Mrs. Doherty, in your mind from an emotional standpoint again do you feel that a defendant who has not taken the stand to testify had something to hide?
“[BY ASSISTANT DISTRICT ATTORNEY]:
“He has stated that question three different ways.
“BY THE COURT:
“What is your answer?
“A. I don’t think so.
“[BY DEFENSE COUNSEL]:
“Q. If no evidence or witnesses were presented on behalf of the defendant — that is after the State presented its case and the defendant does not present any evidence or witnesses on behalf of himself, would you feel in your mind any obligation to find him guilty?
“A. Yes.
“Q. What I am asking you — would you require him to present any proof of his innocence?
“A. Yes.
« * * *
“[BY DEFENSE COUNSEL]:
“Q. Will you require the State to prove its case beyond a reasonable doubt?
“A. I don’t understand.
“Q. I will repeat this question. Will you require the State to prove the defendant is guilty beyond a reasonable doubt. Do you understand the question?
“A. Yes.
“Q. Please give your answer to it.
“A. Yes.
“Q. Throughout this trial, let me tell you this, the defendant is presumed to be innocent. He is presumed to be innocent until proven guilty. Are you positive to a moral certainty that you can afford this defendant the presumption of innocence.
“A. Yes.
“[BY ASSISTANT DISTRICT ATTORNEY]:
“Mrs. Doherty, do you feel like there is any reason why you can’t give this man a fair trial? You may have said you believed somebody else might believe in grand jury and things like this — I am telling you and the Judge will tell you that this man is innocent. Can you accept the law?
“A. Yes.
“[BY ASSISTANT DISTRICT ATTORNEY]:
“And the law further says a man does not have to testify in his own behalf, do you accept that law?
“A. Right.
“[BY ASSISTANT DISTRICT ATTORNEY]:
“And it goes one step further, the law says that when a man does not testify, you can’t as a juror, you are going to take an oath. If you become a juror and you have to swear you accept the law and that you will not hold it against him. You can’t consider that when you deliberate, when you try to reach a verdict. Can you do that?
“A. I can.”
Additionally, because the killing occurred in the penitentiary and it was anticipated that the prime defense witnesses would be inmates, Mrs. Doherty was questioned about the relative weight she would attach to a police officer’s testimony vis-a-vis inmate testimony:
“[BY DEFENSE COUNSEL]:
“Q. I will ask you this Mrs. Doherty: during the course of the trial there will be testimony by inmates. Assuming there is testimony by inmates would you — do you believe in your mind, that during the course of this testimony that one convict would be likely to distort the truth and testifying about another convict?
“A. I think so.
“Q. In other words, you believe a convict might not tell the truth when ■testifying about another convict?
“A. Sometime they will and sometime they won’t.
“Q. Do you believe that a correctional officer would tend to distort the truth about what a convict did in giving his testimony. In other words, you believe a correctional officer would lie about what a convict did?
“A. Yes.
“Q. How about a law enforcement officer — would he also lie about what a convict said or did?
“A. No.
U * * *
“[BY DEFENSE COUNSEL]:
“Q. Would you rely on the word of a convict?
“A. No.
“Q. Do you understand that before a person testified as a witness he is required to take an oath; and in connection with taking an oath, he has to swear to tell the truth, the whole truth, and nothing but the truth. Do you feel Mrs. Doherty, that a convict would feel bound by such an oath that he has taken?
“A. Yes.
“Q. Do you feel that after taking an oath as I have related you that it is to be truthful, would a convict feel any moral compulsion to be truthful?
“A. Repeat that again.
“Q. After a convict has taken an oath to be truthful, do you believe he would feel a moral compulsion — that he would feel compulsed morally to tell the truth?
“A. Yes.
U * * *
“BY THE COURT:
“Do you feel, Mrs. Doherty, that you are biased toward inmates; that you would favor law enforcement witnesses?
“A. Yes.
“[BY DISTRICT ATTORNEY]:
“She doesn’t understand.
a * * *
“[BY ASSISTANT DISTRICT ATTORNEY]:
“Do you feel that you can look at all the witnesses from the witness stand and listen to what they say. Just because a man is „an, inmate, you can’t say — well, because he is an inmate I am not going to believe him regardless of what he says. Can you do that?
“A. I can.
“[BY ASSISTANT DISTRICT ATTORNEY]:
“You are going to hear law enforcement officials—just because he is a law enforcement official you’ve still got to listen to his testimony. You can’t say, well—he works for the State, he must be telling the truth. Do you understand that? You have got to judge his demeanor on the stand. Can you do that?
“A. Yes.”

During the course of the voir dire examination, the trial judge repeatedly remarked upon the venirewoman’s apparent incomprehension of the questions, but nevertheless concluded that she was merely “confused” and did not “[present] any prejudice one way or the other.” Consequently, he refused to excuse her for cause.

Article 797 of the Louisiana Code of Criminal Procedure provides that a juror may be excused for cause on either of the following pertinent grounds:

U * * *
“(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; [or]
U * * *
“(4) The juror will not accept the law as given to him by the court;
ti * * * »

Under the jurisprudence, a juror who is incapable of recognizing the defendant’s presumption of innocence or who will unquestioningly credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve. State v. Thompson, 331 So.2d 848 (La.1976); State v. Johnson, 324 So.2d 349 (La.1976), and State v. Jones, 282 So.2d 422 (La.1973).

Portions of Mrs. Doherty’s testimony reveal a predisposition in favor of the State and police witnesses and against the defendant and inmate witnesses, upon whose testimony the defense depended. Admittedly, there were contrary indications on her part, but these do not dispel our doubts concerning her partiality. We find this case distinguishable from those in which a juror has voiced an opinion seemingly prejudicial to the defense but subsequently, upon further inquiry or instruction by the court, has demonstrated the willingness and ability to decide the case impartially, according to the law and evidence; under those circumstances, a challenge for cause is properly refused. See, State v. Governor, 331 So.2d 443 (La.1976) and State v. Johnson, supra. In the instant case, however, the juror’s retractions, occasionally following considerable coaching by the court and district attorney, were unreliable because she did not appear to be steadfast in any of her opinions. For instance, she variously stated that she did not believe that defendant would be prosecuted if he were not guilty; that the Grand Jury indictment was not conclusive evidence of guilt; that the district attorney’s office would not proceed to trial unless defendant were guilty; that the district attorney’s prosecution of defendant would be indicative of guilt “if he [were] found guilty;” and that she would require the State to prove defendant’s guilt beyond a reasonable doubt.

If Mrs. Doherty’s wavering responses do not conclusively establish that she was biased against defendant, they do show that her ability to grasp the questions propounded was limited, a fact which the trial judge himself observed. If she could not comprehend these simple and direct inquiries, she could not be expected to accept the court’s instructions and apply them to the facts of the case, which raised issues of self-defense and provocation. The State conceded in oral argument that comprehension of the court’s instructions on the law would probably have been difficult for this juror. We agree and find that this factor alone was sufficient to disqualify her from serving on the petit jury. A juror who lacks the capacity to understand the law cannot accept the law as given to him by the court. La.C. Cr.P. art. 797(4). Cf. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971) and State v. Washington, 256 La. 233, 236 So.2d 23 (1970); State v. Rountree, 32 La.Ann. 1144 (1880). The trial court abused its discretion in failing to excuse this juror for cause.

One other assignment of error warrants comment. Defense counsel complains that he was improperly prevented from' cross-examining Lt. Richard Rodriguez, a prison guard, for possible bias.

The killing occurred after defendant was released from his cell on a request to go the hospital. Defense counsel attempted to prove that just prior to the incident the victim, Ferrygood, had intimidated defendant by throwing makeshift bombs into his cell, and that defendant had stabbed Ferry-good either in self-defense or in heat of blood. However, Rodriguez cast doubt upon these defenses by testifying that he noticed no animosity between the two men until defendant’s cell door was opened and he attacked Ferrygood.

Defense counsel contends that because the tension between the two men was readily apparent before defendant was released, Rodriguez was remiss in his duty by permitting their confrontation. The threat of civil liability, counsel maintains, provided Rodriguez with a motive for falsifying his testimony; but the trial court prevented defense counsel from questioning Rodriguez as to the possibility of a civil suit being lodged against him.

La.R.S. 15:492 provides:

“When the purpose is to show that in the special ease 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.”

Counsel’s proposed inquiry was intended to show that Rodriguez’ testimony was biased or that he had an interest in his asserted version of the facts, and under this provision the trial court should have allowed cross-examination on the subject of his potential civil liability.

The remaining assignments of error are without merit.

Accordingly, defendant’s conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

SANDERS, C. J., concurs in the decree only.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Percy JOHNSON.
    No. 58550.
    Supreme Court of Louisiana.
    Jan. 25, 1977.

      Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Percy Johnson was charged with attempted simple burglary in a bill of information. He was tried before a jury, found guilty as charged and sentenced to imprisonment for four and one-half years. On this appeal one assignment of error is urged.

According to the record Malcolm Lemon and Percy Johnson were together during the early morning hours of January 29, 1975. Johnson was trying to force his way into his aunt’s apartment in the St. Thomas Project on Chippewa Street in Orleans Parish. He was observed by a neighbor in the act of breaking in through a window leading from the apartment onto the fire escape. The neighbor summoned the police. As the police arrived Johnson and Lemon fled, but Johnson was apprehended shortly thereafter. Lemon was arrested later.

Lemon was originally charged as a code-fendant but prior to trial agreed to testify as a witness for the State.

A review of the record, specifically the testimony of Clifton Burst, an eyewitness to the crime who reported its occurrence, supports a finding that Lemon was indeed at the scene of the crime. As a lookout and participant Lemon was able to observe and recall the events which transpired during the actual attempt to burglarize.

Burst testified:

“Q. What did you see these two men doing?
A. One was standing on the fire escape, looking out, while the other one was trying to get in.
Q. Did you later see these persons leave the fire escape where they were?
A. Yea, after the police officers came in from St. Mary’s Drive, they came down the fire escape like, you know they jumped.”

Thus, in reciting the facts and circumstances surrounding the offense, Lemon spoke from personal observation and not, as he mentioned, in accordance with what Johnson, his accomplice, told him.

In this factual context the defense contention that Lemon’s narrative of what occurred amounted to a confession or inculpa-tory statement by Johnson is not supported. Since the facts do not support the contention that Lemon’s narration of what happened was a confession or inculpatory statement of Johnson, there was no necessity for the State to furnish the notice of intention to use the inculpatory statement required by Article 768 of the Code of Criminal Procedure as defendant contends. To the contrary, Lemon’s testimony was a narration of events he personally observed and in which he participated. His testimony was therefore admissible as such.

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


text:
    Herman PIERRE et ux. v. Bevelyn D. LANDRY and Fireman’s Fund Insurance Company.
    No. 58309.
    Supreme Court of Louisiana.
    Jan. 26, 1977.

      Leon C. Vial, III, Vial, Vial & Lemmon, Hahnville, for plaintiffs-applicants.
    William S. Marshall, Jr., Dillon & Williams, New Orleans, for defendants-respondents.
   DENNIS, Justice.

This is a damage suit arising out of an accident on a highway involving the operator of an automobile, a pedestrian and the doctrine of last clear chance. In his written reasons for judgment the trial judge found both the driver of the vehicle and the pedestrian negligent, but further found that the driver had the last clear chance to avoid the accident, and, because the motorist was uninsured, rendered judgment in favor of the pedestrian and her husband against their uninsured motorist insurer. Judgment was rendered in favor of the insurer on its third party demand against the uninsured driver.

The court of appeal reversed stating that it did not find evidence in the record to support the lower court’s determination that the automobile driver failed to see what she should have seen, viz., the plaintiff pedestrian in the highway ahead, in sufficient time and at a sufficient distance to avoid the accident. We granted writs to ascertain whether the evidence furnished a reasonable factual basis for the trial court’s finding. Canter v. Koehring, 283 So.2d 716 (La.1973). For the reasons hereinafter stated, we reverse the decision of the court of appeal and reinstate the trial court judgment.

Except for the plaintiff pedestrian’s testimony, which was apparently rejected in part by the trial judge, there is little dispute as to the facts. The accident occurred in a rural part of St. John the Baptist Parish at a place where the river road makes a gradual “S” curve. On March 5, 1973, at about 7:45 a. m., Pearl Pierre was walking south on a sidewalk parallel to the highway when she encountered an area where her path was flooded. To avoid the water, she stepped into the roadway and continued her southerly journey. The opposite side of the highway bordered the Mississippi River levee with a ditch and a narrow shoulder separating them. Although it had rained heavily earlier, at this time a light drizzle was falling and visibility was good.

Bevelyn Landry, the defendant motorist, was driving at a speed of thirty to forty miles per hour as she overtook Ms. Pierre from the rear. She did not see Ms. Pierre in the roadway until her vehicle was forty feet away, and she applied her brakes immediately upon seeing the pedestrian. However, Mary Cambre, a friend and coworker of Ms. Landry, who was following in another vehicle three car lengths behind, could clearly see Ms. Pierre in the road at the moment Ms. Landry applied her brakes. Therefore, the record supports a finding that Ms. Landry could and should have seen the victim in the highway when her vehicle was several car lengths from the point at which she first saw Ms. Pierre. Despite application of her brakes Ms. Landry was unable to avoid striking Ms. Pierre at a point on the pavement two feet from the shoulder of the south-bound lane. Both Ms. Cambre and Ms. Landry testified that Ms. Pierre was first observed in the middle of the road, that she apparently realized her danger and started to cross the north-bound lane toward the levee, but, because a third vehicle was approaching in this lane, she unsuccessfully attempted to retrace her steps and reach the shoulder along the south-bound lane.

Ms. Pierre testified she had walked southward down the highway some one hundred feet past the point where she abandoned the sidewalk before being struck, but she claimed to have kept to the shoulder rather than the paved surface. Ms. Cambre had the impression that Ms. Pierre was attempting to cross the highway, but Ms. Landry said she appeared to be walking southerly toward Luling.

Undoubtedly the court of appeal found more convincing than the rest of the evidence those portions of testimony by Ms. Pierre and Ms. Cambre which would support a theory that the plaintiff pedestrian suddenly entered the highway, in an attempt to cross, in the face of the defendant’s oncoming vehicle. It concluded the plaintiff was not on the road for any appreciable period of time before she was struck, but that she suddenly entered the road, foreclosing any chance that Ms. Landry could have avoided the accident.

In our view, however, the record more than adequately supports the findings of the trial judge. The inferences drawn from the evidence by the court of appeal were not unreasonable, but it was not entitled to substitute its findings of fact for the reasonable evaluations of credibility and reasonable inferences of fact made at the trial.

Nor do we find that the district court erred in applying the law to the facts found. As we recently stated in Guilbeau v. Liberty Mutual Insurance Company, 338 So.2d 600 (La.1976):

“Under Louisiana jurisprudence, an operator of a vehicle or heavy equipment who observes, or who should by the exercise of reasonable care have observed, a pedestrian in a position of peril of which the latter is apparently unaware, is responsible for injuries caused when his vehicle strikes the pedestrian in his path, despite any contributory negligence on the part of the latter; providing that, after the duty to make such observation arose, the operator could reasonably have avoided the accident.
“See: Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973); Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958); Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936); Comment, 27 La.L.Rev. 269 (1967). See also: Leake v. Prudhomme Truck Tank Service, 260 La. 1071, 258 So.2d 358 (1972); Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968).” 338 So.2d at 604.

Applying these principles to the instant case it is reasonable to conclude that the motorist, Ms. Landry, should have observed the pedestrian, Ms. Pierre, who was in a position of peril of which she was obviously unaware, at a time when the operator of the vehicle had a clear chance to avoid the accident. Instead, Ms. Landry failed to observe the pedestrian until she was forty feet from the hapless woman. Even so, the accident was almost averted, because Ms. Pierre was struck when she was only two feet from reaching the safety of the highway’s shoulder. Also, the relatively minor injuries suffered and the fact that Ms. Landry’s car travelled only ten feet after the impact further indicate that had the driver seen Ms. Pierre at the time her duty to make such observation arose, Ms. Landry could have avoided the accident.

The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated.

DIXON, J., concurs, but does not agree with the interpretation of the duty of the court of appeal in the review of facts.


text:
    J. D. ARMSTRONG v. GULF STATES FISHING AND RENTAL TOOLS, INC.
    No. 59016.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: J. D. Armstrong applying for Cer-tiorari, or writ of review, to the Court of Appeal, 338 So.2d 779, Fourth Circuit Parish of Jefferson.

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

DIXON, J., dissents from the denial.

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


text:
    Mrs. Rosetta BAPTISTE v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 59021.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Schwegmann Bros. Giant Supermarkets, Inc. applying for Certiorari, or writ of review, to the Court of Appeal, 338 So.2d 1163, Fourth Circuit, Parish of Orleans.

Application denied; the result is correct.

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

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


text:
    Michael A. BRUNO, Individually and on behalf of/and as the Administrator of the Estate of his minor daughter, Janet Bruno v. Lawrence E. FONTAN.
    No. 59022.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Continental Casualty Co. and Lawrence E. Fontan applying for certiorari, or writ of review, to the Court of Appeal, 338 So.2d 713, Fourth Circuit, Parish of Orleans.

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


text:
    Don H. SCHMIEDER and 12055 Airline Corporation v. STATE FARM FIRE AND CASUALTY CO.
    No. 59025.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Don H. Schmieder and 12055 Airline Corporation applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 390, First Circuit, Parish of East Baton Rouge.

Application denied; the result is correct.

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


text:
    MARCH CHEMICAL CO., INC. v. WHITE CROSS LABORATORIES, INC.
    No. 59030.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: March Chemical Co., Inc., applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 398, First Circuit, Parish of Livingston.

Writ refused. No error of law.

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


author:
SUMMERS, J.,
      DIXON, J.,

text:
    STATE of Louisiana v. John L. GRAY.
    No. 59242.
    Supreme Court of Louisiana.
    Feb. 3, 1977.
   In re: John L. Gray applying for Writs of Certiorari, Mandamus and Prohibition.

Writ granted. Bail reduced to $15,000. The State is entitled to provoke a hearing to increase the bail upon good cause shown. La.C.Cr.P. art. 321.

SANDERS, C. J., dissents from reducing the bond without a prior evidentiary hearing.

SUMMERS, J.,

is of the opinion that this Court should not reduce bail upon the unilateral representation of the accused, without a response by the State and without a record of the evidence upon which the trial judge based the bail amount.

DIXON, J.,

concurs in the grant, noting further that $150,000 is on the face of the record excessive. The purpose of bail is to insure the presence of defendant at trial. On the ruling on the motion to reduce bail, the trial judge did not allude to any reason for such a high bail.


text:
    Thomas A. HOBBS v. FIREMAN’S FUND AMERICAN INSURANCE CO. et al.
    No. 59050.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Fireman’s Fund American Insurance Company, et al. applying for Certiora-ri, or writ of review, to the Court of Appeal, 339 So.2d 28, Third Circuit, Parish of Rapides.

Application denied. The result is correct.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


text:
    Thomas A. HOBBS v. FIREMAN’S FUND AMERICAN INSURANCE CO. et al.
    No. 59061.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Reserve Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 28, Third Circuit, Parish of Rapides.

Application denied; the result is correct.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


text:
    Thomas A. HOBBS v. FIREMAN’S FUND AMERICAN INSURANCE COMPANY et al.
    No. 59071.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Herman Wesley Phillips applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 28, Third Circuit, Parish of Rapides.

Application denied; the result is correct.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


text:
    Thomas A. HOBBS v. FIREMAN’S FUND AMERICAN INSURANCE COMPANY et al.
    No. 59078.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: The vacant succession of Lois Phillips, applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 28, Third Circuit, Parish of Rapides.

Application denied; the result is correct.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


author: DIXON, J.,

text:
    Succession of Floyd Delaney RUGG.
    No. 59055.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Mrs. Yedie Mae Rugg, applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 519, Second Circuit, Parish of Ouachita.

Writ denied: On the facts found by the Court of Appeal, the judgment is correct.

DIXON, J.,

concurs in the denial, and is of the opinion that there is no error of law in the judgment of the court of appeal.


text:
    James A. GALLAGHER v. Bobbie Jo Smith GALLAGHER.
    No. 59074.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: James A. Gallagher applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 483, Second Circuit, Parish of Caddo.

Writ refused. On the facts found by the court of appeal, there is no error of law in its judgment.

DIXON, J., recused.


author: SUMMERS, J., DENNIS, J.,

text:
    William Hawk DANIELS v. Eugene MURRET, Judicial Administrator of the State of Louisiana and the Judiciary Commission of the State of Louisiana.
    No. 59244.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: William Hawk Daniels, applying for writ of certiorari, prohibition and mandamus and stay order.

Writ denied. Relator is not entitled to the relief sought.

SUMMERS, J.,

is of the opinion Applicant is entitled to the issuance of subpoenae for the attendance of witnesses and for the production of documents.

DENNIS, J.,

concurs in the denial of the writ, but is of the opinion that had relator sought to subpoena witnesses for the preliminary investigation, instead of pre-inves-tigation hearing discovery, he would have been entitled to relief.


text:
    STATE of Louisiana v. Donald LOVETT.
    No. 59209.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus, prohibition and for stay order.

Application denied. No error in the ruling under the circumstances shown.


text:
    STATE of Louisiana v. Leonard J. FAGOT.
    No. 59210.
    Supreme Court of Louisiana.
    Jan. 26, 1977.
   In re: Leonard J. Fagot applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. Adequate remedy on appeal in event of conviction.


text:
    STATE of Louisiana v. George McKINLEY.
    No. 59215.
    Supreme Court of Louisiana.
    Jan. 26, 1977.
   In re: George McKinley applying for Writs of Certiorari, Review, Prohibition, Mandamus and Stay Order.

Not considered. Official U.S. postmark shows application not timely mailed.


text:
    STATE of Louisiana v. Billy Harold HOSEA.
    No. 59216.
    Supreme Court of Louisiana.
    Jan. 26, 1977.
   In re: Billy Harold Hosea applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ granted. Ms. Pierson is ordered enrolled as counsel for B. H. Hosea; the district judge and sheriff of Tensas Parish are ordered to permit counsel access to B. H. Hosea, in private, pursuant to 6th Amendment, U.S.Constitution, Art. 1 § 17, La.Constitution and C.Cr.P. 511.


text:
    STATE of Louisiana v. Lloyd POWERS.
    No. 59043.
    Supreme Court of Louisiana.
    Feb. 1, 1977.
   In re: Lloyd Powers applying for writs of habeas corpus, certiorari, prohibition, mandamus and stay order.

Writ granted with stay order.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Covington, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, be transmit to the Supreme Court of Louisiana, as soon as possible, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on February 28, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

It is further ordered that, in the meantime and until the further orders of this court all proceedings against the relator in said 19th Judicial District Court shall be stayed and suspended.

Writ granted with stay order.


text:
    Lewis Etienne ALEMAN v. LIONEL F. FAVRET CO., INC. and Employers Casualty Co.
    No. 59020.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Lewis Eitenne Aleman, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 338 So.2d 785.

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


text:
    STATE of Louisiana ex rel. Charles PRICE, Sr. v. STATE of Louisiana.
    No. 59031.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Charles Price, Sr., applying for writ of habeas corpus and writs of certiora-ri.

Writ granted. The trial judge is ordered to hold an evidentiary hearing on applicant’s entitlement to an out-of-time appeal and to be declared an indigent and entitled to appointed counsel and a free transcript of those portions of the record relevant to objections at the trial; or furnish this Court with those portions of the record which indicate applicant is not entitled to this relief.


text:
    Johnny B. TURNER v. UNITED STATES FIDELITY AND GUARANTY CO., et al.
    No. 59084.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Joint Petition of Johnny B. Turner, plaintiff and appellant, and Town of Boyce and United States Fidelity and Guaranty Co., defendants and appellees, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides, State of Louisiana. 339 So.2d 917.

On joint motion, application dismissed.


text:
    Margaret S. STAGG et al. v. CITY PRODUCTS CORP., et al.
    No. 59023.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Margaret S. Stagg, et al. applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 339 So.2d 362.

Not considered. Not timely filed.


text:
    CAST-CRETE CORPORATION v. WEST BARO CORPORATION and Charles Carter and Company, Inc.
    No. 59024.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Charles Carter and Co., Inc. and Insurance Company of N. America applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 339 So.2d 413.

Writ denied: Under the facts found by the Court of Appeal, there is no error of law.


text:
    Ronald A. LANDRY, Jr., v. Linda Hays LANDRY.
    No. 59026.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Ronald A. Landry, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 339 So.2d 360.

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


text:
    Gordon M. HAGAN and Mrs. Dorothy Hagan v. CHRYSLER CORPORATION et al.
    No. 59027.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Gordon M. Hagan and Mrs. Dorothy Hagan, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 339 So.2d 401.

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


text:
    Mrs. Audrey L. STERNBERG v. Johnnie W. MASON.
    No. 59028.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Mrs. Audrey L. Sternberg, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 339 So.2d 373.

Writ denied. No error of law.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59033.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Prentice Robinson, Jr., applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Application denied. The verdict and sentence were not illegal, and there is no merit in the application.


text:
    STATE of Louisiana ex rel. Richard CURTIS. v. Hon. Matthew BRANIFF, Judge, Section B, Criminal District Court, Parish of Orleans.
    No. 59149.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
   In re: Richard Curtis applying for writ of Mandamus.

Writ denied. Trial judge denied relator’s motion to remand on January 31, 1977.


text:
    Thomas J. MILLER v. Dutriel Michael KEATING et al.
    No. 59042.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Thomas J. Miller, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 339 So.2d 40.

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:
    John C. SAVOIE et al. v. FIREMAN’S FUND INSURANCE COMPANY.
    No. 59075.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: John C. Savoie, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Cameron. 339 So.2d 914.

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


text:
    STATE of Louisiana ex rel. Stevan Robert NOLLAN v. The 14TH JUDICIAL DISTRICT COURT of the State of Louisiana.
    No. 59175.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Stevan Robert Nollan applying.for writ of mandamus.

Writ granted. It is ordered that defendant be returned to Louisiana and tried within 30 days on the pending charge or otherwise that the charge be dismissed and the detainer released.


text:
    STATE of Louisiana v. Alejandro MENA et al.
    No. 58837.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: State of Louisiana, applying for remedial writs.

Treating this appeal as a writ, we deny same because the ruling of the trial judge does not warrant the exercise of our supervisory jurisdiction.


text:
    Edwin L. LYNCH et al. v. John E. DERRYBERRY.
    No. 59070.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
    Rehearing Denied Feb. 25, 1977.
   In re: Edwin L. Lynch, on behalf of the minor, Edwin Bryan Lynch and Doris Lynch applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 339 So.2d 507.

Granted: the judgment of the court of appeal is reversed, and the case is remanded to the trial court. The trial judge is directed to comply with C.C.P. 1813, and order either a remittitur or a new trial, if the trial court is still of the opinion expressed, on April 20, 1976, that the verdicts are so excessive that a new trial should be granted. See, in general, Miller v. Chicago Ins. Co., La., 320 So.2d 134.


text:
    STATE of Louisiana ex rel. David L. N. JACKSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59064.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: David L. N. Jackson applying for writ of habeas corpus.

Writ Denied: The application does not state a ground for relief. See State ex rel. George v. Hunt, 327 So.2d 375 (La.1976).


text:
    STATE of Louisiana v. Danny Lynn BUTLER.
    No. 58736.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: State of Louisiana through District Attorney Ossie Brown applying for Remedial Writs.

Writ denied. Treating this appeal as a writ, the application is denied, the trial court’s ruling being correct. See per cu-riam in State v. Johnson, La., 342 So.2d 863.


text:
    STATE of Louisiana v. Isiah H. WILLIAMS.
    No. 58735.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: State of Louisiana through District Attorney Ossie Brown applying for Remedial Writs.

Writ denied. Treating this appeal as a writ application, it is denied because the ruling of the trial judge is correct. See per curiam in State v. Johnson, La., 342 So.2d 863.


text:
    STATE of Louisiana v. Leroy GREEN.
    No. 58734.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: State of Louisiana, applying for remedial writs.

Writ denied: Treating this appeal as a writ, the application is denied, the trial court’s ruling being correct. See per cu-riam in State v. Johnson, La., 342 So.2d 863.


text:
    STATE of Louisiana ex rel. Tommy Lee CROGIE v. Mr. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 59032.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Tommy Lee Crogie applying for writ of habeas corpus.

Writ denied. The evidence at the eviden-tiary hearing of August 16, 1973, does not establish the petitioner’s allegations, and it shows that the 1970 plea of guilty was intelligently and voluntarily made in the light of applicable standards.


text:
    STATE of Louisiana ex rel. Darrell TAYLOR v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59034.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Darrell Taylor, applying for writ of habeas corpus.

Writ denied. On the showing made there is no merit in the application.


text:
    STATE of Louisiana v. Robert BASS.
    No. 59044.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Robert Bass applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Inadequate showing to warrant the exercise of our supervisory jurisdiction.


text:
    E. Roland KEATING v. Alton J. MILLER.
    No. 59058.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Alton J. Miller, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 339 So.2d 955.

Writ denied. We cannot say that the result reached by the court of appeal is incorrect.


text:
    Hal V. LYONS v. CITY OF SHREVEPORT.
    No. 59060.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Hal V. Lyons, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 339 So.2d 466.

Writ denied. Under the facts found the result is correct.


text:
    STATE of Louisiana ex rel. Walter Lee SMITH v. Ross MAGGIO, Jr., Warden.
    No. 59062.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Walter Lee Smith applying for habeas corpus.

Writ refused. Based on the findings of the trial judge, there is no merit in this application.


text:
    STATE of Louisiana ex rel. Billy HENDERSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59063.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: Billy Henderson applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. The trial judge correctly held, on the basis of the record of applicant’s conviction, that there was no merit to the application for habeas corpus.


text:
    STATE of Louisiana ex rel. James McAllister, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59066.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   In re: James McAllister, Jr., applying for habeas corpus, certiorari, prohibition, in-junctive relief.

Writ denied. No merits in the application warranting the evidentiary hearing sought.


text:
    Eugene SANDERS and Roy Gray v. STATE of Mississippi.
    No. 49473.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Levingston, Jacks & Levingston, Gerald H. Jacks, Cleveland, Abraham, Gleason & Powell, Don 0. Gleason, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Circuit Court, Bolivar County; J. C. Peduccia, Judge.

AFFIRMED.


text:
    Norma FIELDS v. R. D. FIELDS.
    No. 49144.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Thomas J. Gardner, III, Tupelo, for appellant.
    . C. D. Thomas, Pontotoc, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   Appeal from Chancery Court, Pontotoc County; Fred P. Wright, Chancellor.

AFFIRMED.


text:
    Truman WHITE v. STATE of Mississippi.
    No. 49574.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    A. R. Wright, Jr., Morris C. Phillips, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Leake County; Roy Noble Lee, Judge.

AFFIRMED.

LEE, J., took no part.


text:
    Clarice Ila BOYKEN v. Ottis COLEMAN and Hicks-Collier Ford Sales, Inc.
    No. 49133.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    P. L. Douglas, Jackson, for appellant.
    James E. Brown, Starkville, for appellees.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


author: WALKER, Justice:

text:
    Guile F. BROWN and Margaret F. Brown v. GRAVLEE LUMBER CO., INC.
    No. 49098.
    Supreme Court of Mississippi.
    Jan. 26, 1977.

      Bramlett, Mounce & Soper, Paul Kent Bramlett, Tupelo, for appellants.
    Mitchell, McNutt, Bush, Lagrone & Sams, L. F. Sams, Jr., Tupelo, for appellee.
    Before INZER, ROBERTSON and WALKER, JJ.
   WALKER, Justice:

In February of 1971, Gravlee Lumber Company entered into a contract with Mrs. Gloria Stanford to perform certain repairs upon a residence in Tupelo occupied by Mrs. Stanford and her husband, but owned by her parents, Mr. and Mrs. Guile F. Brown. Mrs. Stanford proved unable to pay the debt, whereupon Gravlee brought this action in the Chancery Court of Lee County, Mississippi, to recover a monetary judgment against Mrs. Stanford and the Browns and to enforce a construction lien against the property in question. The chancellor found Mrs. Stanford liable to Gravlee in the amount of $1,918.20, but found that the Browns were not personally liable. However, because Mrs. Stanford had been making the mortgage payments on the residence, the chancellor found that the Browns held the property in a resulting trust for her benefit. The court awarded Gravlee an equitable lien on that interest and ordered the sale of the house and lot to satisfy Mrs. Stanford’s debt. Mrs. Stanford has not appealed from the judgment, but the Browns have appealed from the imposition of a lien upon their property. Gravlee has filed a cross-appeal, contending that it was error to divide the costs between the parties.

The propriety of the chancellor’s decision must be determined by an examination of our construction lien statutes, gathered at sections 356 to 358 of the Mississippi Code 1942 Annotated (1956), and now codified as Mississippi Code Annotated sections 85-7-131, 85-7-135, and 85-7-137 (1972). Section 85-7-131 provides generally that those performing construction and repair services shall have a lien on the property on which the structure in question is located. However, section 85-7-135 limits this language by providing that the lien shall only arise where the work is contracted for by the owner or by a person “authorized, either expressly or impliedly, by the owner.” Section 85-7-137 further limits the application of the lien:

If such house, building, structure, or fixture be erected, constructed, altered, or repaired at the instance of a tenant, guardian, or other person not the owner of the land, only the house, building, structure, or fixture and the estate of the tenant or such other person, in the land, shall be subject to such lien, unless the same be done by the written consent of the owner. (Emphasis added).

It is stipulated that the Browns are the owners of the property in question. Thus, in order for Gravlee to be entitled to any lien against the property, it had to prove that Mrs. Stanford, in contracting for repairs, was authorized by her parents. Furthermore, in order for that lien to extend to the entire lot, Gravlee had to prove that Mrs. Stanford had the written consent of her parents. Otherwise, the lien would be limited to the building, some part thereof, or “the estate of the tenant.”

The chancellor found as a matter of fact that the repairs were authorized by the Browns. He found that Mrs. Brown had assisted in selecting material for the job, and that Mr. Brown had been present while some of the work was being conducted. Mr. Brown’s testimony clarifies his position:

Q. All right. While your daughter was occupying the house at 136 Wayside Street, did she have your permission to make repairs and alterations on the house if she so desired for her own account and at her own expense?
A. The only thing that she told me about was that she wanted to enclose the porch; that’s the only thing she ever told me she wanted to do. I told her if she could do it, if she had the money to do it, go ahead and do it.
Q. My question though is: While Mrs. Stanford was occupying this house, making in effect the monthly payments on the house, did she have your consent to take care of the house, to paint it or do whatever she desired to keep the house in good repair or to make any alterations she wanted to make on the house?
A. Providing she pay for it.

The Browns contend that this evidence does not support a finding that they authorized the work. Evidently conceding that the work was done with their knowledge and consent, they contend that this is not sufficient as a matter of law, and rely primarily upon this language in the opinion on suggestion of error in Stubbs v. Capital Paint & Glass Co., 160 Miss. 832, 846, 135 So. 495, 496 (1931):

[Wjhere material is furnished by a person other than the owner for the partial construction of a building, there is no lien on the building, although such material may have been furnished with the knowledge and consent of the owner of the lot and building.

The Browns misconstrue the import of this language. In Stubbs, the lower court had impressed a lien on the entire lot, which was clearly error. Knowledge and consent certainly are not enough to support a lien on the lot where the statute explicitly requires written consent. The Court did not say that knowledge and consent did not constitute sufficient authorization to justify the imposition of a less extensive lien.

We believe that a liberal construction of the word “authorized” in section 85-7-135 is necessary to effectuate the probable intent of the Legislature. The statute seeks to protect the workman who might otherwise go uncompensated for his labor. A restrictive definition of authorization would undermine that beneficent purpose. It can hardly be argued that a liberal construction does not sufficiently protect the owners against the actions of their tenants and relatives. The Legislature has already considered that problem and has provided in section 85-7-137 that the workman shall only obtain a limited lien where the authorization is not in writing. This protection for owners having been provided by the Legislature, we see no justification for providing further protection by a restrictive concept of authorization. The knowledge and consent of the owner are sufficient to invoke the protection of section 85-7-135, and the chancellor committed no error in so finding.

However, the chancellor committed manifest error in extending the lien to the entire lot. Since there was no written consent by the Browns, Gravlee was entitled to only a limited lien, according to the provisions of section 85-7-137. Gravlee urges that Burwell v. Planters Lumber Co., 220 Miss. 79, 70 So.2d 71 (1954), allows the imposition of a lien on the entire lot despite the lack of written consent. We cannot agree with this contention. There was a written lease in Burwell, and it was stipulated that it was understood by the owner and tenant under the lease that the tenant would make certain repairs and construct new buildings. Id. at 82, 70 So.2d at 72-73. Given the unequivocal language of section 358, we must presume that the Court found that this agreement was contained in the written lease, thereby entitling the workmen to a lien on the entire lot.

Gravlee contends that, in any event, it is entitled to a lien on Mrs. Stanford’s equitable interest in the property. This argument seems plausible, since section 85-7-137 authorizes a lien on “the estate of the tenant or such other person,” even where there is no written consent. Furthermore, the law of other jurisdictions allows the imposition of mechanics’ liens on such equitable interests. 53 Am.Jur.2d Mechanics’ Liens § 41 (1970); 57 C.J.S. Mechanics’ Liens § 16 (1948). We need not decide whether the Mississippi statutes should extend so far, since we are unable to see that Mrs. Stanford has any interest, equitable or legal, in the property.

The facts surrounding Mrs. Stanford’s interest in the property are best described by her father’s testimony:

Q. The payment that she was making then, directed to you, which you in turn passed on to the bank was the exact amount of the loan payment being made to First Citizens, is that correct?
A. Right.
Q. And that was in effect some sort of rent payment then by your daughter; is that correct?
A. Right.
Q. And as I understand it, it was your agreement that when the final payment had been made by your daughter, so that you could make that payment to First Citizens and pay off that bank, then you would give the property to your daughter; is that correct?
A. That’s right.

Only three types of interest might conceivably arise from this arrangement. It is possible, as the chancellor found, that Mrs. Stanford might be considered the beneficiary of a resulting trust, whereby her parents held legal title, although she paid for the property. Mrs. Stanford might also be considered to have an equitable interest as the vendee of an enforceable contract of sale. Finally, she might have a legal estate as the tenant under a month-to-month lease. We have concluded that there was no resulting trust nor enforceable contract of sale for the reasons hereinafter discussed.

Gravlee has not chosen to advance the theory that Mrs. Stanford held a leasehold interest. This is understandable, since such a periodic tenancy would have very little value. However, the other two possibilities require more extensive discussion.

A resulting trust may arise where one party pays the consideration for the purchase of property, and another party takes legal title thereto. For a trust to arise, it is essential that the parties intend that the holder of the legal title shall hold only for the benefit of the purchaser. 89 C.J.S. Trusts § 116 (1955). In the absence of countervailing evidence, the courts will impose this trust, assuming that the party who paid for the property was intended to have the benefit of it. However, the facts giving rise to the presumption, such as the fact and circumstances of payment, must be proved clearly and cogently, since the court ought not to disregard lightly the recorded evidence of legal title. Coney v. Coney, 249 Miss. 561, 568-69, 163 So.2d 692, 695 (1964).

The case of Brabham v. Brabham, 226 Miss. 165, 172-73, 84 So.2d 147, 151 (1955), quoting from earlier Mississippi cases and other authority, lays down in some detail the law of resulting trusts in Mississippi:

“. . . The foundation of the trust in such cases is that the property really belongs to him whose funds have paid for it. But the facts creating the trust must exist at the time of the conveyance; for it is the money which has gone to the vendor as an inducement to the conveyance that creates the equity called a resulting trust. After the title has been conveyed the application of the funds of another to pay the purchase money for the land creates no trust in favor of such other. The trust arises, if at all, at the time of the conveyance. McCarroll v. Alexander, 48 Miss. 128; Miazza v. Yerger, 53 Miss. 135; Brooks v. Shelton, 54 Miss. 353; Thomas v. Thomas, 62 Miss. 531; Chiles v. Gallagher, 67 Miss. 413, 7 So. 208; Barton v. Magruder, 69 Miss. 462, 13 So. 839; Logan v. Johnson, 72 Miss. 185, 16 So. 231; Moore v. Moore, 74 Miss. 59, 19 So. 953; Shrader v. Shrader, 119 Miss. 526, 81 So. 227. Pomeroy lays down the controlling principle thus:
‘In order that this effect may be produced, however, it is absolutely indispensable that the payments should be actually made by the beneficiary or that an absolute obligation to pay should be incurred by him as a part of the original transaction of purchase at or before the time of conveyance. No subsequent and entirely independent conduct, intervention, or a payment on his part would raise any resulting trust.’ 3 Pomeroy’s Equity Jurisprudence (3d Ed.), § 1037.” Bush v. Bush, 134 Miss. 523, 99 So. 151, 152.

We believe that the chancellor erred in finding a resulting trust on the facts presented here. The law is clear: “The trust arises, if at all, at the time of the conveyance.” Id. at 172-73, 84 So.2d at 151. This record does not show when the property was conveyed to Mr. and Mrs. Brown. For a resulting trust to have arisen in favor of Mrs. Stanford, the record must show that, at the time of the conveyance, she had paid the purchase price or had incurred “an absolute obligation to pay.” Id. at 173, 84 So.2d at 151. This record shows only that she made payments to her parents equal to the mortgage payments after she moved into the house. No trust can arise from payments made after the time of the conveyance. In these circumstances, we cannot hold that the Browns are mere trustees for their daughter. Consequently, we cannot conclude that Mrs. Stanford has a beneficial interest to which a construction lien may attach.

Finally, there exists the possibility that Mrs. Stanford should be considered as the vendee under a contract of sale. In other states, a vendee’s interest under an execu-tory contract of sale is subject to a construction lien. 53 Am.Jur.2d Mechanics’ Liens § 42; 57 C.J.S. Mechanics’ Liens § 71c. It is generally held that an oral contract of sale is sufficient, if circumstances are present which make the contract enforceable despite the statute of frauds. 57 C.J.S. Mechanics’ Liens § 71c. In this case, it was admitted both in testimony and in the answer to interrogatories that such an oral contract existed. It must be determined whether this agreement would be enforceable against the Browns despite the statute of frauds. Miss.Code Ann. § 15-3-1(c) (1972).

In his opinion, the chancellor held that the signed admissions by the Browns of the existence of the contract were sufficient to remove it from the statute of frauds. We find no prior Mississippi cases as to whether a judicial pleading or document is sufficient to satisfy our statute’s requirement of a signed memorandum. The rule in other states seems to be that such a writing is ordinarily sufficient. 72 Am.Jur.2d Statute of Frauds § 307 (1974). See generally An-not., 22 A.L.R. 735 (1923). However, the text goes on to say:

The above general rule is clearly applicable where the party admits the oral contract in his pleading and does not assert the statute; in such case this constitutes a sufficient memorandum to satisfy the statute of frauds. This is in accord with the principle that if the defendant by his answer admits the contract and does not set up the statute of frauds as a defense, he cannot have the benefit of the statute but is considered as having waived its protection. It is generally held, however, that in the absence of a statute providing otherwise, the fact that the defendant in his plea or answer admits the oral contract does not prevent him, at the same time, and notwithstanding the admission, from setting up and insisting upon the statute of frauds, and in most jurisdictions the pleading cannot be regarded as a sufficient writing within the statute if the pleader at the same time sets up and relies upon the statute as a defense. (72 Am.Jur.2d Statute of Frauds § 307 at 827-28 (1974)).

Thus, the rule in most jurisdictions is that a party may plead the statute as a defense to the action despite his admission of the contract’s existence. See generally Annot., 158 A.L.R. 89, 156-62 (1945); Annot., 22 A.L.R. 723 (1923).

In this state, a party must raise the statute of frauds as an affirmative defense in order to take advantage of its protection. Greer v. Crawford Corp., 220 Miss. 97, 104, 70 So.2d 69, 70 (1954). The Browns did assert the defense of the statute, both in their pleadings and at trial. We see no reason to depart from the generally prevailing rule that a party might rely on this defense despite his admission of the existence of the contract. Any other rule would require a party to lie in his pleadings in order to retain the protection afforded him by the statute. Hence, we hold that the chancellor erred in finding that the Browns’ pleadings deprived them of the protection of the statute. Nor do we find any other circumstances in this case which render the contract enforceable despite the statute. It is the rule in Mississippi “that neither part performance of an oral contract with respect to the sale of land nor the expenditure of money in reliance upon it are sufficient to take it out of the Statute of Frauds.” Reid v. Horne, 187 So.2d 316, 318 (Miss.1966). Since Mrs. Stanford could not have enforced this contract against the Browns, it follows that she had no equitable interest as a vendee to which a construction lien could attach. Hence, we conclude that Mrs. Stanford had no “estate ... in the land” that could be subject to a construction lien under the provisions of section 85-7-137.

Under that section, Gravlee is entitled at most to a lien on the improvements actually made. This statute was clearly and correctly construed in Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 297-98, 131 So. 426, 428 (1930):

If the house — the entire house — be constructed by the tenant, guardian, or other person not the owner of the land, then the entire building is subject to the lien, but not the lot in addition, unless the building is constructed with the written consent of the owner. And if a structure, for illustration, an added room, as in the Tompkins case [Planters’ Lumber Co. v. Tompkins, 111 Miss. 307, 71 So. 565 (1916)], be erected by a tenant, guardian, or other person not the owner of the land, such structure alone is liable to the lien, provided it can be detached from and removed from the original building without injury to the latter. ... On the other hand, if anything less than the whole building be constructed at the instance of the tenant, guardian, or other person not the owner of the land, and the separation and removal of such structure, whether it be an addition to the building, fixtures, or repairs, cannot be accomplished without injury to the original structure, the lien does not attach to either the complete building or such additions thereto .

This language clearly demonstrates that Gravlee is entitled to a lien on only those improvements which can be separated without damaging,the Browns’ interest in the house. Gravlee argues that Chears misconstrued the statute and failed to provide adequate protection for workmen. We are not impressed by this argument. Had Gravlee wished to protect itself, it could have researched the recorded title to the lot before agreeing to perform the work. Since we cannot tell from this record whether Gravlee might be able to remove some of its improvements without damage to the Browns’ interest, the case must be remanded to the chancery court for proceedings not inconsistent with this opinion.

On cross-appeal, Gravlee argues that it was error for the chancellor to divide the costs between the contending parties. Our law is clear that the division of costs is ordinarily a matter within the discretion of the chancellor. Miss.Code Ann. § 11-53-35 (1972). There are no circumstances in this case which persuade us that the chancellor abused his discretion.

The case is therefore reversed and remanded on direct appeal and affirmed on cross-appeal.

REVERSED AND REMANDED ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: SUGG, Justice,

text:
    Jack KNOWLES v. STATE of Mississippi.
    No. 49449.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Rehearing Denied Feb. 16, 1977.

      Mitchell, Rogers, Eskridge, Voge & Clayton, Dennis W. Voge, Tupelo, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

Jack Knowles was convicted in the Circuit Court of Lee County for the crime of receiving stolen property and sentenced to serve a term of five years in the State Penitentiary.

The questions on this appeal are: (1) Whether defendant, who was an accessory before the fact, but was not present at the actual caption and asportation of the stolen goods or took no part therein, but who received the goods after the theft, may be convicted of receiving stolen property. (2) Whether defendant was entitled to written statements in possession of the district attorney made by the state’s witnesses.

Johnson and Wren testified for the state that they approached the defendant and asked him if he would buy some chairs from them. The defendant agreed to purchase some chairs and Johnson told defendant that he and Wren were going to steal some chairs that night from Action Industries. Johnson asked defendant for the use of a tractor to pull a trailer that was to be used in the robbery. The defendant agreed that he would furnish a red Chevrolet tractor which would be left parked at his service station, but Johnson and Wren would have to wait until he closed the service station before picking up the tractor. Keys were left in the tractor and Johnson and Wren both testified that they found the red Chevrolet tractor at the service station as planned. They drove to Pontotoc County, picked up a trailer from a furniture manufacturing company, proceeded to Action Industries and stole about one hundred chairs. These chairs, along with the trailer, were left at the furniture manufacturing plant in Pontotoc County. Johnson and Wren then returned to Action Industries where they connected the tractor to a trailer loaded with chairs owned by Action Industries and delivered the chairs to the Walking Horse Truck Stop for the defendant, in accordance with their plans. Johnson and Wren returned the trailer to Action Industries and the tractor to defendant’s service station. They further testified that defendant agreed to lend them the tractor and purchase the chairs with full knowledge of the planned robbery. They stated that the defendant paid them $1500 the next day and owed them an additional sum of money for the chairs stolen and delivered to him.

The defendant denied any knowledge of the robbery, denied that he lent a tractor to the robbers, denied that he agreed to purchase the chairs, and denied that he purchased the chairs.

Defendant’s first assignment of error is that he was entitled to a peremptory instruction because the proof showed that he was an accessory before the fact. He argues that, under our holding in Anderson v. State, 232 So.2d 364 (Miss.1970), he could not be convicted of receiving stolen property because the state’s case showed he was guilty as a principal of the crime of larceny. In Anderson, Booth, a witness for the state, testified that Anderson agreed to buy a cow from him for $70 and to cancel Booth’s debt at Anderson’s liquor store if Booth would steal a cow from Joe Jones. He also testified that he stole a second cow from Jones and got a person to help him load the first cow, and Anderson secured the services of Bobby Easterling to haul the second stolen cow. He said the second cow was delivered to Anderson who paid for the cow. We held that Anderson actually advised and procured the commission of the crime; therefore, he was an accessory before the fact and thus was deemed and considered a principal under the provisions of Mississippi Code Annotated section 97-1-3 (1972). We further held that Anderson could not be convicted of receiving stolen property because he was guilty as a principal of the crime of larceny and we adhere to the rule that one who steals property cannot be convicted of receiving, concealing or aiding in concealing stolen property. Thomas v. State, 205 Miss. 653, 39 So.2d 272 (1949); Manning v. State, 129 Miss. 179, 91 So. 902 (1922). In Manning we held that the offense of stealing property and the offense of receiving stolen property are akin to the extent that the crime of receiving stolen goods cannot be committed, except as to goods which have been stolen, but the thief cannot be guilty of both offenses.

Anderson, supra, conflicts with our holding in Steele v. State, 213 Miss. 739, 57 So.2d 574 (1952). The facts in Steele are very similar to the facts in Anderson. The testimony for the state in Steele disclosed that Steele went to the home of Corley, who was employed as a day laborer by the owner of a stock farm, and arranged with Corley and Padgett to haul the cattle to the home of Steele after Steele had actually selected the ones that he wanted delivered to him. Steele was convicted of receiving stolen property and his conviction was affirmed. The Court commented that the testimony of the state warranted either a charge of grand larceny or receiving stolen property.

The prevailing rule pertaining to accessories to larceny being charged with receiving stolen property agrees with our conclusion in Steele, supra, and is stated in 76 C.J.S. Receiving Stolen Goods § 14c at 20 (1952) as follows:

An apparent exception to the rule that one who steals property cannot be convicted of receiving it, as discussed supra subdivision b of this section, is that one who was an accessory before or after the fact but was not present at the actual caption and asportation of the goods or took no part therein, but who received the goods after the theft, may be convicted of receiving stolen goods, and this is true, although statutes provide, or the rule is applied that a person who has been an accessory to a theft may be convicted as principal thief.

To the same effect is the holding of the Supreme Court of Nevada in State v. Sheeley 63 Nev. 88, 162 P.2d 96 (1945) where the Nevada Court stated:

Thus, it has been said that the reason for the general rule, that is, that the thief may not receive the stolen property from himself, disappears where the receiving of the stolen property is not embraced in the caption and asportation, or where the person prosecuted for the receiving is not the principal thief or guilty of the actual taking and carrying away, although guilty of assisting in the larceny or as accessory before or after the fact. Accordingly, the prevailing American rule appears to be that an accused may be convicted of criminally receiving stolen property, even though he was a guilty participant in the stealing of it, where he took no part in the actual caption and asportation but participated only as an accessory before or after the fact, or in a manner not involving his presence at the taking, even though made a principal in the larceny artificially, by statute. (162 P.2d at 99).

We are of the opinion that the better rule is that one who is an accessory before the fact to larceny, but not present at the actual caption and asportation, but received the goods after the theft may be indicted either for larceny or for receiving stolen goods. Larceny and knowingly receiving stolen property are separate and distinct crimes under our statutes. The state, of course, must elect by its indictment which charge it will proceed on and may not try a person for both larceny and knowingly receiving stolen property where the same property is involved. Manning v. State, supra. We overrule that part of Anderson v. State, 232 So.2d 364 (Miss.1970) holding that an accessory before the fact to larceny who is not present at the actual caption and asportation of the stolen goods may not be convicted of knowingly receiving stolen property.

The second error urged by defendant is that the, trial court erred when it refused to require the state to produce the written statement of Romey Johnson, a witness for the state, which had been given to law enforcement officials.

Johnson was called as a witness and at the beginning of his testimony the defendant made a motion for the state to produce the written statement of the witness. Johnson testified without referring to his written statement to refresh his memory and the written statement was not used in any manner in the trial. The cross-examination of Johnson reflects no contradictions in his testimony and appellant did not request the presiding judge to inspect the statement and determine whether it contradicted his testimony. In Mattox v. State, 243 Miss. 402, 137 So.2d 920 (1962), on suggestion of error 139 So.2d 653 (1962), we held that granting or refusing an accused’s request for the production or inspection of a writing in the possession of the prosecution lies in the sound discretion of the trial court. The procedure for laying a proper foundation was stated in Mattox, as follows:

Refusal of an accused’s request for production of such a writing may be based upon the failure to lay a proper foundation by taking the necessary preliminary steps and by showing that the statement is at variance with the writer’s testimony. Anno., 156 A.L.R. at 350. Since there were no material contradictions in Gray-son’s testimony, it was the duty of appellant’s counsel to lay a proper foundation in soipe other way for inspection of the statement. This may be done by submitting the statement to the trial court for an inspection by the presiding judge as to whether it reveals any contradictory matter. Appellant’s counsel did not do this, and laid no foundation for otherwise requiring production of the statement.
The foregoing principles are in accord with the great weight of authority and with the practice in this state, as indicated by Eaton v. State [163 Miss. 130, 140 So. 729], and the discussion in Bellew v. State, 238 Miss. 734, 752-756, 106 So.2d 146 (1958), app. dismissed, 360 U.S. 473, 79 S.Ct. 1430, 3 L.Ed.2d 1531, 361 U.S. 858, 80 S.Ct. 43, 4 L.Ed.2d 96. (243 Miss. at 418, 419, 420; 139 So.2d at 654).

The defendant relies heavily on Armstrong v. State, 214 So.2d 589 (Miss.1968) as support for his position, but Armstrong reaffirmed the rule that the granting or refusal of an accused’s request for the production or inspection of a written statement of a state witness in the prosecution’s possession lies within the sound discretion of the trial court. In Armstrong the defendant requested the court to require the state to give attorneys for the defendant a copy of statements of witnesses who had testified for the purpose of cross-examination. The judge examined the written statements to determine if there were any inconsistencies with the testimony given on the witness stand, and being convicted there were no inconsistencies, denied the request for production of the written statements of the witnesses.

In this case defendant did not request the trial judge to examine the statement for inconsistencies. Defendant did not lay a proper foundation for requiring production of the statement. Mattox, supra.

Defendant does not argue in his brief the effect of the Jencks Act (18 U.S.C. § 3500) and the case of Jencks v. U. S., 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) but in arguing the right to inspect the statement before the trial judge he cited Jencks.

The United States Supreme Court has held that neither the Jencks decision nor the Jencks Act apply to state criminal trials. In U. S. v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) the Court stated:

But questions of that character do not rise to a constitutional level. Indeed our Jencks decision and the Jencks Act were not cast in constitutional terms. Palermo v. United States, supra, [360 U.S. 343], at 345, 362, 79 S.Ct. [1217] at 1229, 3 L.Ed.2d 1287, at 1291, 1300. They state rules of evidence governing trials before federal tribunals; and we have never extended their principles to state criminal trials. It may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right. There is, for example, the command of the Sixth Amendment that criminal defendants have compulsory process to obtain witnesses for their defense. Palermo v. United States, supra, at 362, 79 S.Ct. [1217], at 1229, 3 L.Ed.2d 1287 [at 1300] (Brennan, J., concurring in result). But certain it is that this case is not a worthy candidate for consideration at the constitutional level.
The Court of Claims, in a conscientious effort to undo an injustice, elevated to a constitutional level what it deemed to be an infraction of the Jencks Act and made a denial of discovery which ‘seriously impeded his right to a fair trial’ a violation ‘of the Due Process Clause of the Constitution.’ [Augenblick v. U. S.] 377 F.2d [586], at 606-607, 180 Ct.Cl. [131] at 166. But apart from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten, as in Moore v. Dempsey, supra, [261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543], that the proceeding is more a spectacle (Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663, [665]) or trial by ordeal (Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682 [686] than a disciplined contest. (393 U.S. at 356, 89 S.Ct. at 533-534, 21 L.Ed.2d at 545).

An examination of the record in this case does not show that the trial was conducted in violation of express constitutional mandates, and does not show that constitutional barriers and safeguards were overlooked, but to the contrary, shows that the defendant received a fair trial.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


author: GILLESPIE, Chief Justice:

text:
    Danny A. IVEY v. STATE of Mississippi.
    No. 49388.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Merrida P. Coxwell, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice:

As required and by authority of Jackson v. State, 337 So.2d 1242 (Miss.1976), this case is reversed and remanded for trial in accordance with Jackson v. State.

REVERSED AND REMANDED.

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