author: McCORD, Judge. RAWLS, Acting Chief Judge

text:
    Gloria Elizabeth WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. CC-457.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   McCORD, Judge.

This is an appeal of judgment and sentence of appellant for petit larceny, she having been convicted of petit larceny twice previously. Appellant contends the trial court erred in refusing to grant appellant’s motion for mistrial after the store manager of the Montgomery Ward store from which appellant had allegedly stolen property testified that appellant neither denied nor admitted the charge after he took her into custody. We find no error and affirm.

The evidence shows that appellant was observed by several employees of Montgomery Ward walking through the store wearing a hat which she had not paid for. They observed her go out the door and then return when she knew she had been seen. She then took off the hat and tossed it down with a pair of the store’s gloves. She was then approached by the manager. He testified that upon apprehending appellant, he “asked her to step down back to the office, we needed to talk to her. She stated that she wasn’t coming back and I said that we’d have to take her back there forcibly if she didn’t want to go with us. She stopped, opened her purse, took out a cigarette, lit a cigarette and then she walked back with us.” Upon being asked if appellant said anything to him at that point, the manager replied, “She neither denied nor admitted the charge.” There is no affirmative testimony that appellant was actually interrogated by the manager. After the above quoted testimony, the manager said, “I left the scene, we walked back to my office. She came into my office and sat down. I had one of the ladies from the credit area come down and sit down to be present. I went in and picked up the store’s walki talki and paged the mall police.” The manager then testified that the officer came in and took appellant to their security office where he filled out his form and sealed the merchandise in a sack.

Appellant contends that the doctrine laid down in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is applicable, and that the manager’s testimony that “she neither denied nor admitted the charge” injected fundamental error into the trial; that appellant’s motion for mistrial made immediately after the statement should have been granted; that appellant had a right to remain silent, and any reference before the jury that appellant had declined to answer questions propounded to her while in custody was fundamental error.

Miranda deals only with police custodial interrogation. We do not consider that the doctrine pronounced in Miranda by the United States Supreme Court in relation to police custodial interrogation should be broadened and extended to include circumstances such- as those present in the case sub judice which does not involve police custodial interrogation. The manager’s testimony that “she neither denied nor admitted the charge” means only that she did not volunteer any information one way or the other and properly relates to her unexplained possession of recently stolen property. Such testimony was admissible since appellant’s silence was not silence in the face of police custodial interrogation.

Affirmed.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

This appeal is from a judgment of conviction for the crime of petit larceny. Appellant walked out of Montgomery Ward’s store (Norwood Avenue — Duval County) with a hat and a pair of gloves without paying for same. Becoming aware that she was being observed by employees of Ward’s, she returned to the interior of the store and tossed the articles of clothing into a pile of boxes. Ward’s manager testified that at this point in time he apprehended appellant and: “I asked her to step down back to the office, we needed to talk to her. She stated she wasn’t coming back and I said that we’d have to take her back forcibly if she didn’t want to go with us.” The manager further testified that appellant walked back with him and another employee. During trial, in response to the prosecuting attorney’s question, “Did she say anything to you at that point?”, the manager responded, “She neither denied nor admitted the charge.” Appellant’s motion for mistrial grounded on her “right to remain silent” was denied. The manager testified he then paged the mail’s police, and Officer Spicer came and took appellant to the security office.

The majority has agreed with the state’s argument that appellant was not under arrest by a law enforcement officer, and Miranda’s “custodial interrogation” principle refers to “police . custodial interrogation” and thus is not applicable. By enactment of Section 901.34, Florida Statutes (1975), the Florida legislature conferred the authority of the sovereign upon:

“. . .a merchant, or a merchant’s employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner . (emphasis supplied)

Here, the “merchant”, acting with this grant of sovereign authority, took appellant into his custody and interrogated her; thus, the custodial interrogation was conducted in a police-like atmosphere pursuant to the sovereign’s grant of such power. Under the circumstances reflected by this record, it is my opinion that the trial court committed fundamental error in denying appellant’s motion for mistrial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Bennett v. State, 316 So.2d 41 (Fla.1975); and Jones v. State, 200 So.2d 574 (Fla. 3rd DCA 1967). See also Peak v. State, 342 So.2d 98 (Fla. 3rd DCA 1977), wherein the Third District Court of Appeal, in considering a similar factual situation, held: . that an involuntary confession, whether made to law enforcement officers or private persons [private security officer], is inadmissible. People v. Haydel, 12 Cal.3d 190, 115 Cal.Rptr. 394, 524 P.2d 866 (1974). Also see Commonwealth v. Mahnke, 335 N.E.2d 660 (Mass.1975), and People v. Frank, 52 Misc.2d 266, 275 N.Y.S.2d 570 (1966). ...”


source: Caselaw Access Project

author: MILLS, Acting Chief Judge.

license: Public Domain

text:
    George Wilbur GASKINS, Appellant, v. STATE of Florida, Appellee.
    No. AA-290.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    John C. Cooper, Douglass & Powell, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Richard L. Wilson, Asst. Atty. Gen., for appellee.
   MILLS, Acting Chief Judge.

A jury found Gaskins guilty of forging and uttering three state pay warrants. He appeals contending the trial court erred in denying his motion for judgment of acquittal. We agree.

The State failed to prove that Gas-kins signed the warrants. Its handwriting expert was unable to state that Gaskins signed the warrants. Although Gaskins’ fingerprints and palmprints were found on the warrants, there was no evidence that the prints were put there while he allegedly signed the warrants. This was necessary.

The State failed to prove that Gas-kins uttered the forged warrants. A witness for the State stated that the man who cashed the warrants was driving a truck with the words “Custom Deluxe 10” written on the side. The evidence adduced by the defendant showed that Gaskins’ truck had the words “K-5 Blazer” written on the side and that he did not have access to a vehicle such as the one described by the State’s witness. Another State’s witness, who briefly glimpsed the man at a distance on the bank’s television screen asked if he was Gaskins who he had not seen for several years. At trial, this witness could not identify Gaskins as the man he had seen on the television screen. The State failed to adduce evidence that Gaskins’ fingerprints and palmprints were placed on the warrants while committing the charged crime. In addition, there were prints on the warrants which were never identified. Gaskins submitted evidence that he handled the warrants and pay envelopes in carrying out the duties of his employment. The evidence concerning the charge of uttering is as consistent with innocence as with guilt. Williams v. State, 308 So.2d 595 (Fla. 1st DCA 1975).

Under the facts of this case, the trial court erred when it denied Gaskins’ motion for judgment of acquittal.

The judgments and sentences on all six counts of which Gaskins was adjudged guilty are reversed.

SMITH, J., and DRURY, ARVEL, Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    J. F. DEES et al., Appellants, v. Phillip SCOTT, Appellee.
    No. BB-370.
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      Raymond E. Makowski, Jacksonville, for appellant.
    Stanley B. Gelman, Jacksonville, Fred L. Cavalli, Atlanta, Ga., for appellee.
   BOYER, Chief Judge.

Appellee John Phillip Scott brought suit on a $10,000 promissory note which appellants had signed as guarantors. At the conclusion of the presentation of all the evidence, the trial court entered a directed verdict in favor of appellee. Appellants now appeal the final judgment entered pursuant to the directed verdict and the trial court’s denial of their motion for new trial, raising (a) sufficiency of the evidence and (b) the trial court’s refusal to allow two of their witnesses to testify on the basis of the attorney-client privilege and the accountant-client privilege.

The intricate financial dealings which culminated in this lawsuit began in January of 1972 when appellant J. F. Dees, Joseph E. Williams, and Hugh H. Scott, Sr., formed a corporation, J. Williams Construction Co. Appellant Dees was the sole stockholder, Williams was the corporate president, and Scott agreed to loan the corporation $100,-000 for which he would receive 40 percent of the net profits from the corporation. According to appellant Dees, Scott represented himself as Hugh H. Scott, Jr. After making the initial $100,000 loan to the corporation, Scott made an additional loan of $10,000, as evidenced by a note in that amount executed by the corporation to Hugh H. Scott, Jr. That note was guaranteed by appellants. In July of 1972, the corporation in an attempt to increase its bonding capacity sought an additional $50,-000 from Scott and further executed a $150,000 subordination debenture in favor of Hugh H. Scott, Jr. An amended subordination debenture in the same amount was executed by the corporation in favor of Hugh H. Scott at the same time that Hugh H. Scott, Sr. acquired controlling interest in the corporation. In 1974, Hugh H. Scott, Jr. assigned the $10,000 promissory note to his brother, appellee, who, after making demand on the corporation, likewise made demand on appellants. When appellants refused payment, appellee brought suit on the note.

At trial, appellants sought to have the corporation’s attorney, William Frazier, testify that he advised appellant Dees and the Board of Directors that the $150,000 subordinated debenture would satisfy both the $100,000 and $10,000 promissory notes. The trial court refused to allow Mr. Frazier to testify when appellee’s attorney invoked the attorney-client privilege on behalf of the corporation. The trial court .also indicated that he would not allow Earl Sapp, the corporation’s accountant, to testify for appellant on the basis of the same confidential relationship that was found in the attorney-client relationship.

We first consider whether the corporation’s attorney should have been permitted to testify. Once the attorney-client relationship is established, all confidential communications are privileged. (Schetter v. Schetter, 239 So.2d 41 (Fla. 4th DCA 1970).) The element of confidentiality has been retained in the new Florida Evidence Code, which becomes effective July 1, 1977. See § 90.502, Florida Statutes (1976 Supplement). Whether a communication is confidential depends upon the intent of the client. If the client intends the matters communicated to be made public or revealed to third persons, the matters are not confidential. See McCormick, Handbook of the Law of Evidence, § 95.

The record of the case sub judice reveals that the matters concerning which the corporate attorney was called to testify were not intended by the corporation to be confidential. As the minutes of the July 10, 1972 meeting of the Board of Directors indicate, the corporation, in an attempt to increase its bonding capacity, was required to alter its financial structure by the bonding company, United States Fidelity and Guaranty Company. Given the fact that the corporation would of necessity have to reveal its restructured finances to the bonding company, the matter about which the corporate attorney was expected to testify can hardly be said to be confidential. The trial court’s refusal to allow the attorney to testify was, therefore, error. Because the attorney’s proposed testimony was crucial to appellants’ defense, we conclude that the entry of a directed verdict in favor of ap-pellee was also erroneous.

Appellants should have also been permitted to call as their witness the corporation’s accountant. By statute, a privilege exists between a client and his public accountant or certified public accountant. Section 473.141, Florida Statutes (1975). However, the privilege is restricted to a “certified public accountant” and “public accountant”. Those terms “shall be deemed and construed to mean a person holding a certificate to practice as such, issued by the state under this chapter, or any laws of the state heretofore in force and effect.” F.S. § 473.011(1), Florida Statutes (1975). If, as appellants contended in their motion for new trial, the accountant Earl Sapp is neither a “certified public accountant” nor “public accountant” as defined by statute, then he should be allowed to testify.

Accordingly, the cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

MILLS, J., and JOPLING, WALLACE, Associate Judge, concur.


author: SMITH, Judge.

text:
    Paul CHAPPELEAR and his wife, Irene Chappelear, Appellants, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation authorized to do business within the State of Florida, Appellee.
    No. CC-465.
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      Daniel L. Hightower of Green, Simmons, Green & Hightower, P. A., Ocala, for appellants.
    J. Christian Meffert of Ayres, Cluster, Curry, Meffert & McCall, P. A., Ocala, for appellee.
   SMITH, Judge.

Plaintiff appeals from a circuit court judgment dismissing his action against Allstate for automobile personal injury protection benefits exceeding $5,000. Appellant was named insured of a single Allstate policy covering appellant’s two automobiles, one of which appellant was driving when injured in an accident.

Section 627.736(2), Florida Statutes (1975) provides, in respect to personal injury protection benefits, that an insurer may exclude such benefits

“(a) For injury sustained by the named insured . . . while occupying another motor vehicle owned by the named insured and not insured under the policy

Appellant’s Allstate policy provides:

“Regardless of the number of persons insured, policies or bonds applicable, vehicles involved or claims made, the total aggregate limit of personal injury protection benefits available under the Florida Automobile Reparations Reform Act from all sources combined, including this policy, for all loss and expense incurred by or on behalf of any one person who sustains bodily injury as the result of any one accident shall be [aggregate total $5,000 each person].”

Had appellant’s two automobiles been insured by separate Allstate policies, the exclusion would unquestionably limit appellant to $5,000 in personal injury protection benefits, as prescribed by Section 627.736. State Farm Mut. Auto. Ins. Co. v. Castaneda, 339 So.2d 679 (Fla. 3d DCA 1976). A different result is not required by the circumstance that Allstate here issued a single policy insuring both vehicles. Appellant’s argument that the single policy is in effect two policies, thus generating the possibility of two $5,000 insurance funds, is self-defeating. If the policy is thus regarded as two, the statutory exclusion has unambiguous effect. If the policy is but one, there is but one $5,000 benefit.

AFFIRMED.

RAWLS, Acting C. J., and ERVIN, J., concur.


author: SCHEB, Judge.

text:
    David JASSY, Appellant, v. Edith Partrich JASSY, Appellee.
    No. 76-1736.
    District Court of Appeal of Florida, Second District.
    July 1, 1977.

      Johnson S. Savary, Kirk, Pinkerton, Sparrow, McClelland & Savary, Sarasota, for appellant.
    William H. Shields, Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellee.
   SCHEB, Judge.

In this appeal from a dissolution of marriage judgment appellant/husband challenges monetary and property awards in favor of appellee/wife. Specifically, the husband contends the trial court erred in: 1) granting his wife rehabilitative alimony; 2) awarding her the marital home on finding of special equity in her favor and in addition requiring him to continue to pay one-half of the mortgage payments; and, 3) ordering him to pay the wife’s attorney’s fees.

We conclude that, with one exception, the awards were within the parameters of judicial discretion. The one exception is the requirement the trial judge imposed upon the husband to pay one-half of the mortgage payments on the former marital home in which he has no further interest. As to this one point, we reverse; otherwise, we affirm.

Essentially, the facts are these: Mr. and Mrs. Jassy were married in Michigan in 1969. No children were born of this union, which was a second marriage for each of the parties. They moved to Florida where they separated in 1975. He is now 58, she is 55 and both are in apparent good health. The husband is a substantial developer who has considerable investments in real estate ventures. The extent and diversity of the husband’s assets make it difficult to accurately portray their value; however, there is no issue as to his ability to adequately provide for the legitimate and reasonable needs of the wife. Rather, the issue is the extent of the wife’s entitlement. The wife, who has a high school education, was employed for only the first eight or nine months of the marriage, but for many years prior to the marriage was a secretary and real estate salesperson. At the time of the dissolution the wife owned the following assets in her name alone: a twenty-acre tract of land received from her husband in which she has an equity of between $27,000 and $37,000; a small share in a commercial building which yields income of about $168 per year; personal jewelry worth between $1,000 and $3,000; a 1973 automobile; and, 1,000 shares of stock worth between $1,000 and $3,000. In addition to the husband’s substantial interests in his own regard the parties owned a substantial amount of property, jointly: a mortgage with a balance due of approximately $75,000, from which they received approximately $14,000 per year; the marital home worth from $45,000 to $65,000; and 32,000 shares of stock worth between $32,000 and $100,000.

The trial judge granted the wife rehabilitative alimony of $600 per month for 36 months. She was awarded the jointly owned marital homeplace upon finding of a special equity in her favor. In addition, the trial court imposed upon the husband a requirement that he pay one-half of all mortgage payments on the former home-place until the mortgage loan is completely liquidated. The trial judge also awarded the wife $2,500 in payment of her attorney’s fee.

It appears to us that after dissolution the wife should receive from her share of the former jointly owned mortgage the sum of approximately $7,000 per year for the next four or five years. In addition, she should receive $168 per year from her minimal interest in the commercial building. She is obligated to pay mortgage payments on the tract of land she received from her former husband. She contends the mortgage payments, when combined with her monthly expenses, will result in a negative cash flow, even considering the amount of rehabilitative alimony which she will receive.

The real thrust of this appeal is the husband’s contention that the trial judge abused his discretion in the awards made to the wife in the dissolution of a second venture, childless marriage of something short of seven years.

Rehabilitative Alimony

We have no difficulty in sustaining the trial court’s award of rehabilitative alimony for thirty-six months. At best, a woman 55 years old with a high school education and no work experience during the past seven years will find difficulty competing in today’s job market. This is the type situation which demonstrates the need for rehabilitative alimony. As Judge McNulty said in Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1973), rehabilitative alimony contemplates sums necessary to assist a divorced person in regaining a useful and constructive role in society through vocational and therapeutic training or retraining.

Here, the wife’s secretarial skills and real estate experience in another state probably would be of only limited assistance to her at this time. Retraining will assist her to develop a potential to maintain a decent and dignified lifestyle somewhat in keeping with what she has known. She plans to work toward a degree in business finance. Initially, she intends to pursue her studies at a local junior college with expectation of completing her degree requirements at a state university. We commonly think of rehabilitative alimony in terms of a somewhat younger spouse when it relates to retraining. Yet, the wife is in apparent good health and considering the increased longevity of the female sex it was within the trial judge’s discretion to conclude her goal was an appropriate one and that she has the potential to realize her objective. Once the trial judge so concluded it was incumbent upon him to require the husband, who was financially able to furnish the assistance, to provide necessary funds to accomplish the rehabilitation. Moses v. Moses, 344 So.2d 1322 (Fla.2d DCA 1977).

Award of Special Equity

We reject the husband’s claim that the wife could not assert a special equity on the grounds that it was not specifically pleaded. The matter was sufficiently embraced within the pretrial order to place the husband on notice that her claim was an issue before the court. Moreover, testimony was introduced by the wife on the subject without objection by the husband. Fla.R.Civ.P. 1.190(b); see also Community Cablecasting Corp. v. Daniels & Associates, Inc., 215 So.2d 17 (Fla.1st DCA 1968).

The evidence discloses that when the wife entered the marriage she sold her house, which was her only substantial asset, for $25,000, receiving $15,000 cash. She turned this sum over to her new husband and another house was purchased in Michigan with title taken in their joint names. When that home was sold the proceeds went into the purchase of a marital residence in Florida acquired by the parties as tenants by the entireties. She testified he promised she would receive back her $15,-000. This home, which the wife valued at $45,000, is encumbered by a $30,000 mortgage. Under the applicable decisional law, where one spouse contributes to purchase of a jointly owned home it has been held to be presumed a gift to the other spouse. Ball v. Ball, 303 So.2d 32 (Fla.2d DCA 1974). The presumption, of course, is a rebuttable one. Coulton v. Coulton, 330 So.2d 533 (Fla.2d DCA 1976). There was evidence that certain gifts of property were made to the wife by the husband. Appellant points primarily to the tract of encumbered land he gave to his wife and argues that the court should have found this and other gifts had more than compensated the wife for her investment in the homeplace. Implicit in the trial judge’s order is a rejection of the husband’s position on this point.

The trial judge awarded the special equity based upon a finding that the “proceeds from the home she owned prior to her marriage . . . were used in acquisition of the [Florida] home.” A fair reading of the record reveals substantial and competent evidence of a clear and convincing character from' which the trial judge could have properly concluded that the wife’s contribution was made with the specific understanding that her contribution would be returned to her. Therefore, we cannot disturb this finding which is clothed with the presumption of correctness.

The requirement imposed by the trial judge that the husband continue to pay one-half of the mortgage payments on the marital homeplace in which he has no further interest is somewhat novel. There was no provision that the requirement was to cease upon the death or remarriage of the wife or even upon the sale of the residence. The requirement could obviously not be considered child support, as there were no children. Nor could it be considered rehabilitative alimony, as the trial judge found only a three-year need for such alimony. In contrast, the mortgage payments are to continue for seventeen years. Nor can we consider it to be permanent alimony, as the trial judge found that the wife’s needs could be adequately met through rehabilitative alimony and without the need for permanent alimony. Since this requirement is incompatible with established concepts of support or alimony, it was error for the trial court to impose it upon the husband.

Attorney’s Fees

The purpose of awarding attorney’s fees in a dissolution of marriage proceeding is to insure both parties will reasonably have the same ability to secure competent legal counsel. Mertz v. Mertz, supra. While the wife possessed assets, it would have been difficult for her to liquidate them in time to discharge her obligation to her attorneys. She testified that her cash assets consisted of approximately $2,000 when she filed for dissolution but had dwindled to approximately $1,300 by the time of the final hearing. Her immediate cash position did not lend itself to securing representation without considerable difficulties which likely would have resulted from a premature rearrangement of her finances. Whether to grant attorney’s fees in this proceeding was a matter of sound discretion for the court. The trial judge obviously intended to place the wife on an equal footing with her husband in regard to her present ability to secure representation. We cannot say the trial judge abused his discretion in requiring the husband to pay $2,500, an amount which counsel for both parties agreed was very reasonable under the circumstances of this case.

Accordingly, that part of paragraph 4 of the final judgment entered August 27,1976, which states:

“Respondent is also directed to pay one-half of the mortgage which constitutes a first lien on that property in installments as they mature until the loan is completely liquidated.”

is stricken. Otherwise, the judgment of the trial court is affirmed.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . The discrepancy in valuations results from the wide variance in estimates with the higher estimates by the husband and the correspondingly lower estimates by the wife.

      . It is noted that this case was reversed by the supreme court in Ball v. Ball, 335 So.2d 5 (Fla.1976). There it was held that there is no presumption of a gift in jointly owned marital real estate, but that either husband or wife may demonstrate a special equity in the property. However, in order to avoid the spate of appeals that would have resulted from retroactive application of the doctrine, the supreme court said that it “shall apply only to dissolution proceedings instituted after the date this opinion becomes final.” 335 So.2d at 8. The opinion was announced on June 30, 1976, but Ms. Jassy had initiated the dissolution proceedings in December of 1975. Therefore, the law as it stood before the supreme court’s Ball opinion must govern.


author: PER CURIAM.

text:
    Eugene Raymond LALONDE, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-1950, 76-1951.
    District Court of Appeal of Florida, Second District.
    July 1, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment below is affirmed but the case is remanded for resentencing of appellant specifying credit for time served. The appellant does not have to be present at resentencing.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.


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

text:
    STATE of Louisiana v. Edward Ronald ANTHONY.
    No. 59192.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      Thomas E. Guilbeau, Guilbeau & Sullivan, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, Edward Ronald Anthony, was convicted of the armed robbery of Gayle Guidry, an employee of Trip-L-Kwik convenience store located in New Iberia, Louisiana. The trial judge sentenced him to imprisonment for thirty years in the custody of the Louisiana Department of Corrections without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:64. On appeal, he relies upon forty-seven assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 8, 10, 11, 12, 13, 14, 20, 22, 23, 24, 38, 39, 40, 41, 42, 43, AND 44

In these assignments of error defendant alleges that the trial court erred in failing to grant him a new trial or, alternatively, in failing to dismiss the charges against him on the ground that the verdict was contrary to the law and evidence presented at trial. Defendant’s allegations fall into four categories: (1) the State failed to present evidence of an essential element of the offense, namely theft; (2) defendant’s witnesses contradicted those of the State; (3) some of the witnesses’s testimony lacked credibility because of discrepancies in the testimony; and (4) the broad generalization that the verdict was contrary to the law and evidence.

Generally, the trial judge’s ruling denying a new trial based on an allegation that the verdict is contrary to the law and evidence presents nothing for our review. State v. Williams, La., 343 So.2d 1026 (1977); State v. Skelton, La., 340 So.2d 256 (1976); State v. Russell, La., 334 So.2d 398 (1976). However, defendant’s allegation that no evidence was presented of an essential element of the offense charged, i. e. theft, does present a reviewable question of law. State v. Tyler, La., 342 So.2d 574 (1977); State v. Finley, La., 341 So.2d 381 (1976); State v. Alexander, La., 339 So.2d 818 (1976).

When the record contains some evidence of each element of the offense, we may not set aside the conviction. The mere allegation that the evidence is insufficient to prove defendant’s guilt beyond a reasonable doubt is a question of fact rather than one of law. Our examination of Gayle Gui-dry’s testimony, and that of Billy Jo Lowe, a coemployee in the store during the robbery, reveals: that money was taken after a show of force by the accused, who was armed with a pistol. The State clearly presented “some” evidence supporting each essential element of the charged crime: armed robbery. LSA-R.S. 14:64.

Defendant’s attacks upon the accuracy and credibility of some of the testimony present nothing for our review. These assertions go to the weight to be given to the testimony, a factual question for the jury. LSA-C.Cr.P. Art. 920; State v. Snoddy, La., 332 So.2d 800 (1976); State v. Jones, La., 315 So.2d 650 (1975); State v. Johnson, La., 315 So.2d 636 (1975). In State v. Johnson, supra, we held:

“In his brief, the defendant alleges only that the verdict is contrary to the law and the evidence. He points to several conflicts in the trial testimony.
“In criminal cases, our review is limited to questions of law. LSA-Const. Art. 5, § 5(C) (1974). Defendant’s contentions relate to the weight of the evidence and the credibility of the witnesses. They raise no question of law.
“In State v. Grey, 257 La. 1070, 245 So.2d 178 (1971), we held:
‘The allegation that the verdict is contrary to the law and the evidence and the attack upon the credibility of the witnesses and their evidence present no question of law for our review.’ ”

Assignments of Error Nos. 1, 8,10,11,12, 13, 14, 20, 22, 23, 24, 38, 39, 40, 41, 42, 43, and 44 are without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in refusing to grant a continuance in order that he might confer with and have his case tried by a retained attorney rather than his court appointed attorneys, whom he attempted to discharge the morning of his trial.

Defendant has a right to counsel of his choice to defend him in a criminal case. LSA-Const. Art. 1 § 9; LSA-C.Cr.P. Art. 511. We have, however, consistently interpreted this right as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to interfere with the fair administration of justice. State v. Frezal, La., 278 So.2d 64 (1973); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

Defendant’s motion for a continuance and its subsequent denial occurred in the following manner: On the morning of trial, Monday, June 14, 1976, just as voir dire examination of the jurors was to commence, appointed counsel requested and was granted a hearing in chambers regarding defendant’s objection to proceeding to trial with his appointed counsel. The chambers hearing is a part of the record on appeal. Defendant presented to the trial judge a written notice stating that he had, as of the preceding Saturday afternoon, retained a new attorney, Mr. James Wayne, of Donaldsonville, Louisiana. Mr. Wayne was not present in court, nor was there any communication or confirmation from him concerning his interest in the case. In explanation of Mr. Wayne’s absence, defendant stated: “He told me it would be impossible to take up the defense just on the spur of the moment.”

Inquiring further into the situation, the court learned that defense counsel had been appointed to represent defendant on March 3, 1976, that appointed counsel had actively prepared for trial, and that counsel had filed and argued appropriate pre-trial motions on behalf of defendant.

The hearing also discloses that earlier during the preceding week, defendant had negotiated with another attorney. The defendant had not retained that attorney. After noting that the case had been fixed for trial some six weeks previously, that appointed defense counsel had done everything expected of him in preparing the defense, and that the witnesses and jurors had assembled for trial, the court denied defendant’s motion for a continuance:

The trial court’s ruling was correct. We find the following pertinent in reaching our conclusion: (1) The alleged retained attorney neither appeared in court to verify his retention, nor communicated with the trial judge in any other way; (2) the record reflects only defendant’s statement that a third party had contacted and retained the attorney and that defendant had only had a telephone conversation with the attorney; (3) appointed counsel had filed a prior motion on the same ground regarding another alleged retained counsel; (4) the motion was made on the morning of trial; and (5) the alleged retained counsel neither made an appearance nor contacted the court either during the trial or on the Motion for New Trial. We are convinced, as was the trial judge, that defendant’s request was a dilatory tactic.

The law is well settled that a defendant in a criminal trial cannot, by a last minute change of counsel, force a postponement of his trial. State v. Alexander, La., 334 So.2d 388 (1976); State v. Stafford, 258 La. 523, 246 So.2d 849 (1971). In State v. Alexander, supra, we held:

“The general import of the colloquy which took place prior to trial was that Alexander was dissatisfied with his court appointed counsel and had the representation of a retained attorney through the aid of a friend. A denial of a motion for a continuance made on the day of trial on grounds that the defendant is dissatisfied with his attorney has been held to be proper. State v. Austin, 258 La. 273, 246 So.2d 12 (1971).
“In State v. Austin, supra, we stated: ‘Defendant is entitled to counsel. He may hire whom he chooses. Because he is indigent, he is privileged to have the State appoint an attorney without any cost to him. To permit the accused to discharge his court-appointed counsel on the day of trial, without any showing of incompetence and without having a privately retained attorney present to take his place, would be to permit defendant to choose which lawyer the court must appoint to defend him. We are not aware of any basis in law for such a claim upon the State or upon the members of the bar.’

“See also State v. Navarre, La., 289 So.2d 101 (1974), wherein the language quoted above was cited with approval.”

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred in refusing to grant his challenge for cause of juror Clay Romero on the ground “that because of his business operations his frame of mind would be such that he would be unable to properly concentrate on the case at hand and thus give the defendant a fair and impartial trial.”

During the course of jury selection, defendant exhausted his peremptory challenges; therefore, he may object to improper refusals to grant challenges for cause. LSA-C.Cr.P. Art. 800.

We have examined the record pertaining to Mr. Romero’s questioning prior to selection for the jury and find no error in the trial court’s ruling. Although Mr. Romero did state that he would worry about the possible theft of some 300 crab traps, his answers to both the state and defense attorneys were that if he "had to sit on the jury” he would do so and that worrying about his traps would not affect his judgment or cause bias. In our opinion, the showing is inadequate to sustain the challenge for cause. LSA-C.Cr.P. Art. 797.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR No. 4

Defendant alleges that the trial court erred in denying his challenge for cause of Mrs. Joan Provost. Defense counsel challenged Mrs. Provost because of her employment as a Criminologist at the Aca-diana Criminalistics Laboratory. He argued that, because of her employment, she would be “prosecution oriented.”

The Acadiana Criminalistics Laboratory for which Mrs. Provost works was created by LSA-R.S. 40:2267.1 for the purpose of crime detection, prevention, investigation, and other related activities in connection with criminal investigation. The laboratory is under the control of the Acadiana Crimi-nalistics Laboratory Commission, which is composed of sheriffs, district attorneys, and police jury members of the district served by the laboratory. LSA-R.S. 40:2267.3. The laboratory is funded by sums derived from fines and bond forfeitures in the district it serves. LSA-R.S. 40:2266.1. The laboratory, because of its organization, funding, and purpose, is closely connected with law enforcement agencies and personnel. The primary purpose served by the laboratory is independent, objective analysis of various substances, such as blood, hair, drugs, and chemicals.

With Mrs. Provost’s close connection to law enforcement agencies in mind, we have carefully examined her responses to the questions posed to her by both the prosecution and defense. Mrs. Provost freely testified about the laboratory and the nature of her work which, as a serologist, consisted mainly of chemical analysis of blood, other body fluids, and marijuana. She stated that the laboratory was funded by portions of fines from the laboratory’s eight-parish district. She further stated that the vast majority of the laboratory’s work was done for the State — that defendants rarely requested their services. Her responses, during extensive questioning, demonstrate impartiality. She testified, without reservation, that neither her occupation nor her acquaintance with law enforcement agents would influence her vote if selected for the jury. Since no grounds exist under LSA-C. Cr.P. Art. 797 for excusing this juror for cause, we find no abuse of the discretion of the trial judge in denying the challenge for cause. LSA-C.Cr.P. Art. 797; State v. Weathers, La., 320 So.2d 895 (1975); State v. Frazier, La., 283 So.2d 261 (1973); State v. Willis, 262 La. 636, 264 So.2d 590 (1972).

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant urges that the trial court erred in excusing for cause, pursuant to a State challenge, Mr. Montgomery Antoine, a juror who had been a longtime friend of the defendant. Defendant’s assignment of error is grounded upon the fact that he was not allowed to examine Mr. Antoine once his personal relationship with the defendant had been revealed and the State was granted its challenge for cause.

In his argument, defendant does not assert that the court erred in granting the challenge for cause, he argues only that he was denied his right to examine the juror. The scope of voir dire is within the sound discretion of the trial judge. LSA-C.Cr.P. Art. 786. At the time he was excused, the juror had already testified that, because of his friendship with defendant, he could not be impartial.

Moreover, Article 800 of the Louisiana Code of Criminal Procedure provides in pertinent part:

“The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.”

In the present case, the State used only five of the twelve peremptory challenges allowed to it; therefore, even if the trial court’s grant of the challenge for cause had been erroneous, defendant would be entitled to no relief. LSA-C.Cr.P. Art. 800. Since we are unable even to review the challenge for cause, it follows that failure to allow defense counsel to question the witness presents nothing for our review.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that prospective juror, Woodrow Baird, Jr., should have been excused for cause due to the fact that as a newspaper reporter he had covered criminal trials in the past, and “he had preconceived notions of the criminal justice system which would bar him from giving to the defendant a fair and impartial trial.”

The record reveals that Mr. Baird is a managing editor of a local newspaper. As a reporter on a small paper, he had covered criminal trials, as well as other types of assignments. During the past year- and a half, he had covered only one criminal trial. He testified that he could be impartial and could apply the law and the presumption of innocence to which the defendant was entitled. He stated that he could accept the law as given to him by the court and that he did not believe that his experience as a reporter would in any way cause him to be partial. No grounds existed for granting a challenge for cause' of this juror, and the trial court properly denied defendant’s challenge. - LSA-C.Cr.P. Art. 797.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant urges that the trial court erred in admitting, over timely objection, a photograph of a lineup for which a proper foundation had not been laid by the State.

During examination of Billy Jo Lowe, the prosecutor produced a photograph depicting the lineup that this witness had viewed. Before offering the photograph, the prosecutor asked the witness to identify the photograph:

“Q. Do you recognize that photograph?
“A. Yes, sir.
“Q. What is that a picture of?
“A. The lineup I viewed on the 24th [of February].
“Q. How did you view that lineup?
“A. Through a one-way mirror.
“Q. Did you receive any promptings or suggestions as to how to select anybody?
“A. No, sir.
“Q. Did you identify anyone in that picture as being a possible suspect in this case?
“A. Yes, sir.
“Q. Which ones did you identify?
“A. Either Two or Four.
“Q. You identified two possibles?
“A. Yes, Sir.” [Rec. Vol. III, pp. 586-87]

At this point, the State offered the photograph into evidence over defendant’s objection that “there’s been no foundation to show the source and origin of the photograph, itself.”

Defendant bases his argument on LSA-C.Cr.P. Art. 773, which provides:

“Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.”

We have consistently held that when a witness identifies a photograph as a true depiction of the scene it purports to represent, the testimony of the photographer who took the picture is unnecessary for the foundation. State v. Freetime, La., 334 So.2d 207 (1976); State v. Curry, La., 325 So.2d 598 (1976); State v. Jones, La., 320 So.2d 182 (1975). The sufficiency of the foundation for photographic evidence rests in the sound discretion of the trial judge. State v. Williams, La., 343 So.2d 1026 (1977); State v. Freetime, supra.

The witness identified the photograph in the instant case as accurately depicting the scene of the lineup she viewed on February 24, 1976; therefore, a sufficient foundation for the photograph’s admission was established, and the trial court properly admitted it into evidence.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant alleges that the trial court erred in overruling his objection to what he categorizes as “a leading question.” The record reflects that the witness had just testified that she had seen the pistol in the defendant’s belt. The prosecutor then asked: “Could you see the entire pistol that was in the defendant’s belt at the time?” The witness replied, “Mostly the handle.” At this point, defendant objected to the question as leading and requested that it should be stricken. Defendant’s objection was overruled.

LSA-R.S. 15:277 provides that in order to be leading, a question must suggest the answer to the witness. When viewed in context, the question objected to is not leading because it did not in any way suggest the answer to the witness; therefore, the trial court correctly overruled defendant’s objection.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 16

Defendant argues that Ms. Guidry’s identifications of him both at the physical lineup and at trial were tainted by the previously and improperly conducted photographic lineup at the police station. Therefore, he claims that the court erred in admitting into evidence the photograph of the lineup and in failing to dismiss the charge against him or to grant a new trial.

A pretrial motion to suppress the lineup identification was grounded upon the allegedly improper conduct of that procedure, but it did not raise the issue of any suggestion inherent in the photographic identification, nor did counsel argue this point at the motion to suppress hearing. Similarly, when defense counsel objected to the introduction of the photograph of the lineup, he did so on the ground that the State had not laid a proper foundation for its admission into evidence and did not contend that the identification itself was tainted.

Louisiana Code of Criminal Procedure Article 841 provides that an irregularity or error cannot be availed of after the verdict unless it was objected to at the time of occurrence and the grounds for the objection were made known to the court. A new basis for an objection cannot be raised for the first time on appeal. State v. O’Blanc, La., 346 So.2d 686 (1977); State v. Williams, La., 343 So.2d 1026 (1977); State v. Marks, La., 337 So.2d 1177 (1976); State v. Powell, La., 325 So.2d 791 (1976); State v. Forbes, La., 310 So.2d 569 (1975). Hence, these assignments, which essentially relate to the conduct of the photographic lineup and which were not presented to the trial court, are not properly before us for review.

Assignment of Error No. 16 is without merit.

ASSIGNMENT OF ERROR NO. 19

Defendant contends that the trial court erred in admitting into evidence a photograph of the lineup because the picture did not reflect the date and time it had been taken and the members of the lineup did not bear sufficient resemblance to the defendant to make the procedure fair and impartial.

We have found defendant’s first contention to be without merit in Assignment of Error No. 7, supra.

Defendant’s second contention relates to the composition of the lineup. Because the defendant has not required the photograph in question to be included in the record, we refer to the testimony at the hearing on the motion to suppress the identification. Officer Paul Judice, who conducted the lineup, testified that it was composed according to the description of the robber which the victim had given to the police. The perpetrator of the crime was reported to have been a light-complexioned black in his mid-twenties,. about 5'8" and weighing about 160 pounds. According to the testimony, five members of the lineup, including the defendant, fit that general description with minor variations in height, weight, and complexion. After viewing the picture and hearing the testimony, the trial court concluded that it had been fairly conducted.

We require no strict identity of characteristics among the members of a lineup. All that is required is sufficient resemblance to reasonably test identification. State v. McSpaddin, La., 341 So.2d 868 (1977); State v. Jarrow, La., 331 So.2d 1 (1976); State v. Daniels, La., 326 So.2d 340 (1976). After a review of the relevant testimony, we conclude, as did the trial judge, that the lineup was fairly conducted.

Assignment of Error No. 19 is without merit.

ASSIGNMENT OF ERROR NO. 26

Defendant argues that the trial court erred in overruling his objection to his being identified in court by Deputy Gary Mor-ford. The basis of the objection is that the identification was a “one on one” identification and was made without any proper foundation being laid.

Deputy Morford was the officer who arrested the defendant at his home the morning after the robbery. The record discloses that, after the arrest, Deputy Morford transported the defendant to the Sheriff’s office, where the defendant was booked. After that, the defendant was in Deputy Morford’s office for several hours, during which he talked with defendant.

While defendant may be correct in his allegation that a proper foundation had not been laid prior to the identification in court, such a procedure is not necessarily error if a basis for independent identification exists of record. State v. Webb, La., 307 So.2d 582 (1975). The fact that the witness arrested the defendant and spent a number of hours with him immediately following the arrest provides the independent source necessary.

Assignment of Error No. 26 is without merit.

ASSIGNMENTS OF ERROR NOS. 27, 28, 29 AND 31

In these assignments of error the defendant objects to the display before the jury and introduction into evidence of State’s Exhibit Nos. 4 and 5 (a pistol and shoulder holster) and No. 14 (a pistol grip) on the grounds that a proper foundation had not been established. In support of these allegations, defendant argues that the deputy who seized the evidence and who was testifying at the time they were introduced into evidence, had placed no identifying marks on the objects and had not “tagged” them in any way. Further, the Identification Officer for the Calcasieu Parish Sheriff’s Office, to whom the evidence was delivered, did not testify as to custody. Lastly, the defendant alleges that the gun and holster had been turned over to the Iberia Parish Sheriff’s Office on the day that they were seized, and no testimony was offered as to who picked up the evidence or where the pistol and holster were between the time that they were seized and the time that they were introduced into evidence, approximately three and one half months.

The arresting officer, Deputy Morford, testified for the State. He testified that when he entered the defendant’s house, he arrested the defendant and seized a pistol and shoulder holster that were hanging on a door close to the defendant. When asked at trial if he could identify the State’s Exhibit Nos. 4 and 5, the deputy identified No. 4 as the pistol that was hanging on the side of the closet door in the defendant’s bedroom and No. 5 as the holster in which the pistol was holstered. Further, the deputy also testified that the pistol grip (State’s Exhibit No. 14) was the same one that he had seized from the defendant when he patted him down after the arrest.

A proper foundation for the introduction of physical evidence may be established either by proof of a chain of custody or by in-court identification. Though these items of physical evidence were not tagged or marked, Deputy Morford identified each of the items as those seized from the defendant on the morning after the robbery. The deputy’s testimony established that it was more probable than not that the items offered into evidence was that connected with the case. They were, therefore, properly admitted into evidence. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Assignments of Error Nos. 27, 28, 29, and 31 are without merit.

ASSIGNMENT OF ERROR NO. 33

Here, defendant asserts that: “The Court erred in overruling the objection of defense Counsel to the placing into evidence by the State of Exhibit No. 9 which purported to be a statement signed by the defendant on the basis that it was an incomplete and inaccurate statement.”

The defendant has neither briefed nor argued this assignment of error. Hence, it is considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENTS OF ERROR NOS. 34 AND 45

In these assignments of error, defendant alleges that the trial court erred in allowing the introduction into evidence of a pair of pants, a sweater, a sweatshirt, and three cartridges which were removed from the defendant’s home.

After the defendant had given his statement to the police, he agreed to allow the police to search his house and voluntarily signed a “Permission to Search.”

When the police arrived at the house, the defendant’s wife was there, and they searched both bedrooms of the house and the bathroom adjoining them. In one of the bedrooms, the officers saw the three cartridges on top of one of the dressers and seized them. Defendant argues that the seizure of the cartridges was beyond the scope of authority that the defendant granted the police when he signed the “Permission to Search.” The “Permission to Search” form authorized the officer to seize “any items of property whatsoever which they deem pertinent to their investigation.” Certainly, the cartridges fall within that category. In any event, the officers were lawfully in bedroom by defendant’s own permission, and the cartridges were in plain view and subject to seizure since we are here dealing with an armed robbery.

Defendant also alleges as error the trial court’s permitting the introduction into evidence of a pair of pants, a sweater, a sweatshirt, and three cartridges on the basis that the defendant’s wife did not give her permission for the search of the residence and seizure of these items. Having found that the defendant had given his permission for the police to search his home, it was unnecessary for the police to obtain an additional written permission to search from defendant’s wife. State v. Dupuy, La., 319 So.2d 299 (1975).

Assignments of Error Nos. 34 and 45 are without merit.

ASSIGNMENTS OF ERROR NOS. 35 AND 36

Defendant urges that the trial court erred in admitting into evidence the pants, sweater, sweatshirt, and cartridges, discussed above, on the ground that the State had failed to lay a proper foundation for their admission.

Lt. Paul Judice testified that he had recovered each of these items in a search of defendant’s home in Lake Charles and made a visual identification of the evidence. On the basis of this testimony alone, the State offered the items into evidence. When defense counsel complained that the evidence had not been identified by chain of custody, the court ruled that the objection went to the weight and not to the admissibility of the evidence.

To admit demonstrative evidence at trial, the law requires that it be identified. Establishing the chain of custody is one method of identification, but the identification may also be visual, as in this case. State v. Dotson, supra. Furthermore, after the evidence had been admitted, Lt. Judice stated that he had personally transported the evidence from defendant’s home in Lake Charles to the police evidence locker in New Iberia, where it was stored in Captain Landry’s custody until the trial. When the evidence was needed for trial, Lt. Judice personally removed it, and delivered it to the prosecutor.

The record reflects that a proper foundation was laid by the State for introduction of all of these articles into evidence.

Assignments of Error Nos. 35 and 36 are without merit.

ASSIGNMENT OF ERROR NO. 46

In this assignment of error, defendant complains that the trial court erred in failing to admonish the jury to disregard certain remarks made by the prosecutor in his closing argument, which defendant alleges were improper.

The State adduced testimony at trial showing that at approximately 9:30 p.m., on February 23, 1976, defendant entered a Trip-L-Kwik store on Hopkins Avenue, where a police officer was watching for shoplifters from a concealed vantage point, but there were other customers in the store and defendant purchased only a two cent box of matches before leaving; that defendant returned to the same store moments later when the officer was talking to the cashier, purchased a pack of cigarettes and again left the store; that about fifteen minutes later defendant appeared in a nearby Trip-L-Kwik store on Fulton Street where customers were shopping, purchased another pack of cigarettes and departed, but returned later when the store was clear of customers and robbed the cashier.

After reviewing the testimony pertaining to defendant’s first visit to the Trip-L-Kwik, the prosecutor said:

“I submit to you that if there hadn’t been other customers in the store, we might have had an armed robbery right under the eyes of a police officer at that time.”

Defense counsel did not, then or later, object to this statement, move for a mistrial, or request an admonition. Nevertheless, he contends on appeal that the court erred in failing to admonish the jurors to disregard the statement as being improper argument.

LSA-C.Cr.P. Art. 774 defines the scope of proper argument:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
U * * * >>

Because this article provides no sanctions for violations, an improper comment falls within the ambit of LSA-C.Cr.P. Arts. 770 and 771. These articles authorize the trial court to correct prejudicial remarks made by the district attorney either by ordering a mistrial or admonishing the jury, upon motion by defendant. State v. Clark, La., 332 So.2d 236 (1976). By failing to request the admonition to which defendant claims he is entitled, he has waived his right to complain of the prosecutor’s remark on appeal. LSA-C.Cr.P. Art. 841; State v. Clark, supra.

Assignment of Error No. 46 is without merit.

ASSIGNMENTS OF ERROR NOS. 15, 17, 18, 21, 25, 30, 32, 37, AND 47

In these assignments of error, defendant alleges as error various acts or omissions on the part of his court-appointed attorneys.

The trial strategy of defense counsel is not reviewable on appeal. During the course of trial, the acts and decisions of defense counsel are presumed to be those of defendant himself. Allegations of ineffective assistance of counsel are properly raised by writ of habeas corpus in a post-conviction proceeding. State v. Ross, La., 343 So.2d 722 (1977); State v. Mouton, La., 327 So.2d 413 (1976); State v. Marcell, La., 320 So.2d 195 (1975).

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

DIXON, J., concurs.

TATE, J.,

dissents on the basis of Assignment of Error 4. The individual so closely connected with law enforcement activities should have been excused for cause from jury service.

CALOGERO and DENNIS, JJ., dissent for reasons assigned by TATE, J., and all were of the opinion that a rehearing should be granted.

      . Our ruling as to this individual juror should not be construed as condoning a general practice of allowing the personnel of the Acadiana Criminalistics Laboratory to serve on trial juries. In fact, we regard it as most inadvisable.


author: SUMMERS, Justice.

text:
    CITY OF LAKE CHARLES v. Ernest BELL. CITY OF LAKE CHARLES v. HARDY M. PARKERSON.
    No. 58917.
    Supreme Court of Louisiana.
    June 20, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., J. Fred Patín, City Prosecutor, for plaintiff-respondent.
    Hardy M. Parkerson, in pro. per.
   SUMMERS, Justice.

Certiorari was granted on the relation of Hardy M. Parkerson, Esquire, Attorney at Law, to review the proceeding in the Lake Charles City Court wherein the trial judge held him guilty of contempt of court and sentenced him to serve twenty-four hours in jail.

The matter arose during the prosecution in the City Court of the case of City of Lake Charles v. Ernest Bell. Relator was representing the defendant Bell who had been convicted on two charges of battery on police officers in the Lake Charles City Court on May 24, 1976 and June 7, 1976, respectively. A transcript of the testimony at these trials is on file in this proceeding but the validity of those convictions is not an issue here.

Approximately ten days beforehand the trial judge, the city prosecutor and relator agreed to try still another charge against Bell on November 15, 1976. This latter charge was for committing a battery upon Officer J. Gayle, it being the third case against Bell to be tried as a result of a series of seven charges.

However, on the day set for the trial relator filed a petition in the United States District Court for removal of the case to that Court from the City Court of Lake Charles “pursuant to 28 U.S.C.A. 1443”. The petition alleged that the pending prosecutions against Bell in the City Court involved charges for simple battery (2 counts); being drunk; resisting arrest; and carrying a concealed weapon. It was alleged that Bell was unable to obtain his equal civil rights because the City was attempting to twice place him in jeopardy; and he would be denied the presumption of innocence because the same judge who would try the pending cases had already heard the evidence in two previous trials arising out of the same incident.

Notice of the filing of this removal petition was received by the prosecutor and the clerk of the city court on the morning of the day the case was set for trial, the trial being set for two o'clock that afternoon. When court convened that afternoon, relator urged in the presence of the Court that the filing of the removal petition had the effect of an automatic stay of all proceedings in the City Court, and the City Court was without jurisdiction to try the case. He was not prepared, however, to furnish the authority for his position beyond a reference to Section 1446 of Title 28 of the United States Code Annotated, which he could not produce. The city judge and the city prosecutor were of the opinion a stay order should issue from the Federal District Court to divest the City Court of jurisdiction and that the stay was not automatic. After extensive argument relator requested a delay of thirty minutes to get the book containing the pertinent Act of Congress, but by this time the afternoon was well advanced and the city prosecutor and trial judge, not being convinced that relator’s position was well-founded, insisted that the trial proceed.

Relator then announced that he would not participate in the trial, and would not defend Bell. Bell would have to be tried without the benefit of counsel, he said. Bell, however, declared that relator was his lawyer and he did not want to be tried without his lawyer.

Despite the trial judge’s entreaty, relator refused to go to trial. When the case was announced ready for trial relator again declared that he would not defend Bell on the charge, and he moved to withdraw as counsel. Whereupon, the trial judge addressed relator:

“Stand up, Mr. Parkerson. You are the counsel representing this defendant. This case has been set for trial. You’re in cognizance of the fact that it has been set for trial. I think that your motions are dilatory, and I am just ordering you to go to trial to represent this client. Now, if you refuse to do so, I am going to hold you in contempt of Court.”

In disregard of this admonition relator continued to argue that the City Court was without jurisdiction because the case had been removed to the Federal Court. After repeated requests from the trial judge that he try the case, the judge stated that relator filed his removal petition at the last minute to catch the judge unprepared and to delay the case again. Relator was then held in contempt of court for the reasons found by the trial judge to be “adequately stated and adequately transcribed.” He was sentenced to serve 24 hours in jail. La.Code Crim.Pro. arts. 16, 17, 20-25. The trial was then continued indefinitely.

It is unmistakably clear to this Court that the trial judge in the City Court honestly and in good faith, believed that the removal petition did not have the automatic effect of staying all proceedings in his court. He believed, as he stated, that the Federal court must order the stay. The city prosecutor argued to the same effect at the time, although he now concedes that the stay was automatic.

It is a well-accepted principle in proceedings for criminal contempt that orders of the trial judge in the conduct of trials must be obeyed, irrespective of the ultimate validity of the order, unless the-trial judge stays the order or ruling to permit a review. The correctness of a court order or ruling is not contested by deciding to willfully disobey it, without suffering the consequence of that disobedience. Respect for judicial process is a small price for the civilizing hand of law. Absent a showing of transparent invalidity or patent frivolity surrounding the order, it must be obeyed until stayed or reversed by orderly review. See United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972).

Inviolability of court orders is unique among governmental commands. When legislators or executive agencies — State or Federal — have transgressed constitutional or statutory bounds, their mandates need not be obeyed. Violators, of course, risk criminal sanctions if their predictions of illegality fail, but if the directive is invalid, it may be disregarded with impunity. It is only the orders of judicial authorities which must be tested in the courts before deliberate transgression can be excused on an eventual determination that the order was invalid. United States v. Dickinson,, supra.

The criminal contempt exception requiring compliance with court orders, while invalid non-judicial directives may be disregarded, is not the product of self-protection or arrogance of judges. Rather it is born of an experience-proven recognition that this rule is essential for the system to work. Judges are charged with the final responsibility to adjudicate legal disputes. Determinations take the form of orders. The problem is unique to the judiciary because of its particular role. Disobedience to a legislative pronouncement in no way interferes with the legislature’s ability to pass laws. The dispute is simply pursued in the judiciary, and the legislature is free to discharge its responsibilities despite the disregard of its statutes. Law enforcement is also not brought to a standstill by failure to convict those who disregard the unconstitutional commands of policemen.

On the other hand, the deliberate refusal to obey an order of court without testing its validity through established processes requires further action by the judiciary, directly affecting its ability to discharge its duties and responsibilities. While it should be sparingly used, the power of courts to punish for contempt is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the judicial process. Without this authority courts would be mere boards of arbitration whose orders, ruling, judgments and decrees would be only advisory. United States v. Dickinson, supra. A court’s power to decide includes the power to decide wrongly.

The rule that invalid court orders must nevertheless be obeyed until set aside presupposes the existence of at least three conditions: 1) the court issuing the order must enjoy subject matter and personal jurisdiction over the controversy; 2) adequate and effective remedies must be available for orderly review of the challenged ruling; and 3) the order must not require an irretrievable surrender of constitutional guarantees.

The threshold inquiry is, of course, jurisdiction. And in considering this question the conclusion is obvious that the city court was without jurisdiction to cite relator for contempt for failure to try a case over which the city court was without jurisdiction. This finding makes consideration of conditions 2) and 3) unnecessary.

Section 1443 of Title 28 of the United States Code permits the filing of a removal petition:

“Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.”

And Section 1446(e) of that same Title sets forth the effect of such a filing:

* * * * * *
“(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”
* * * * * *

Section 1446(e) plainly states that once the petition for removal has been filed in federal court and written notice is given thereof to all parties and the clerk of the state court, the removal takes place and the state court “shall proceed no further unless and until the case is remanded.” This means that the city court jurisdiction is either at an end, or is suspended until the federal court remands. In either instance the state court “shall proceed no further.” Other provisions bolster this conclusion. Thus, Section 1447(c), dealing with remand, states that the clerk of the federal district court shall mail a certified copy of the order of remand to the clerk of the state court; and that “[t]he State court may thereupon proceed with such case.” Section 1450 further indicates loss of jurisdiction by the state court by its provisions that “[a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the [federal] district court.”

In discussing Section 1446(e) the Court in Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975), said, “It is clear that once a removal petition has been filed and proper notice given adverse parties and the state court, the [federal] district court has exclusive jurisdiction over the case.” See also Georgia v. Rachel, 384 U.S. 780, 797 n. 27, 86 S.Ct. 1783, 1793, 16 L.Ed.2d 925 (1966), where the Court speaks of the removal being “effected” after notice is given to the parties and the state court and sets forth that “state court proceedings cease unless the case is remanded.” Cf. Jackson v. State, 337 So.2d 1281 (Ala.1976). 1A Moore’s Federal Practice, § 0.168[3.-8].

The authorities supporting the conclusion that the removal divests the state court of jurisdiction have been fully explored in State ex rel. Gremillion v. National Association for the Advancement of Colored People et al., 90 So.2d 884 (La.App.1956), and more recently in Styers v. Pico, Inc., 236 Ga. 258, 223 S.E.2d 656 (1976).

On the basis of this overwhelming authority, the city court was without authority to proceed with the trial against Bell. For this reason, that court was without jurisdiction to order relator to defend his client at such a trial and, consequently, the city court was without authority to cite him for contempt.

For the reasons assigned, the ruling adjudging relator in contempt of court is declared null and void and without effect.

      . Subsequently, on January 19, 1977, the judge of the Federal District Court for the Western District of Louisiana remanded the case to the Lake Charles City Court.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Leon ABNEY, Jr., Appellant.
    No. 59158.
    Supreme Court of Louisiana.
    June 20, 1977.

      Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., O. L. Waltman, E. J. Bleich, Asst. Dist. Attys., for plaintiff-ap-pellee.
   TATE, Justice.

The defendant Abney was convicted of manslaughter, La.R.S. 14:31(1) (1973), and sentenced to eight years imprisonment at hard labor. He appeals his conviction, relying upon sixteen assignments of error.

The offense charged is based upon the defendant Abney’s killing Nicky Lampkin. The fight between the two occurred about midnight. A few minutes earlier, Lampkin had hit Abney’s girl friend outside the American Legion Hall, a social establishment.

Abney, the defendant, was walking up when, he said, he saw Lampkin, the deceased, hit his girl friend. Threats ensued between the two, Abney drew a gun out of his pocket, and subsequently he shot and fatally wounded Lampkin.

(Abney claimed that he shot only when Lampkin advanced upon him armed with a bottle. However, other witnesses testified that the bottle had been taken from Lamp-kin before Abney arrived at the scene. The jury apparently did not accept the testimony by Abney and his witnesses introduced in support of his plea of self-defense. La. R.S. 14:20(1).)

Indictment and Proof of Manslaughter

Preliminarily, we note that the evidence so summarized constitutes some proof of the defendant’s guilt of manslaughter, which (for the circumstances shown) is defined as:

“A homicide . . . committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. * * *” La.R.S. 31(1) (1973), “When the offender has a specific intent to kill or inflict great bodily harm * * La.R.S. 14:30 (1973) and 30.1 (1973) (statutorily incorporated by La.R.S. 14:31 by reference as describing the type of homicide here charged as homicide).

We therefore find no merit to the defendant’s assignments based on contentions that no evidence proves the crime and all of its essential elements: Assignment 11 (motion for directed verdict); Assignment 13 (motion for a new trial).

Likewise, we find no merit to the assignments which question the validity of the indictment (bill of information), namely assignment 3 (motion to quash) and assignments 14 and 15 (motion and supplemental motion in arrest of judgment):

The (bill of) information charged the accused with manslaughter in conformity with the short form authorized by La.C. Cr.P. art. 465(A)(33) (1973). Our court has long ago and consistently rejected the accused’s contention that this short-form indictment does not adequately inform the accused of the nature and cause of the accusation against him as constitutionally required (see La.Const. of 1974, Article 1, Section 13): State v. Cooper, 249 La. 654, 190 So.2d 86 (1966); State v. Nichols, 216 La. 622, 44 So.2d 318 (1950). See also State v. Hamilton, 334 So.2d 383, 384 (La.1976); “The basic function of the specific indictment forms is to inform the accused of the crime charged, reserving a recital of the details of the offense for the bill of particulars.”

Similarly, we have previously rejected the contention, here raised again by the accused, that somehow the United States Supreme Court, by invalidating the death penalty of La.R.S. 14:30 (1973), first degree murder, has likewise invalidated the statutory definition of the offense, see State v. Smith, La., 339 So.2d 829 (1976), or the lesser homicide offenses created by related statutes, see State v. Cook, 345 So.2d 29 (La.1977) and State v. McDaniel, 340 So.2d 242 (La.1976).

Voir Dire Examination

The defendant perfected three assignments during the voir dire examination of prospective jurors.

Assignment 5 presents perhaps the only seriously arguable issue raised by this appeal. The trial court overruled the defendant’s challenge for cause as to prospective juror Smith. The basic objection to the juror’s serving was that he had stated that, with regard to an accused’s failure to take the stand in his defense not raising any presumption of guilt, “as far as honestly putting something like that totally out of my mind, I don’t know if I’m capable, if I can accept it.”

The complete voir dire examination of the juror otherwise indicated him to be a competent and impartial and intelligent venireman. Following the juror’s frank admission that he found it difficult to put an accused’s failure to testify “totally out of my mind,” the court further interrogated him. The juror then stated that, whether or not he could put the circumstance out of his mind, he could accept and comply with the instruction that no presumption of guilt would arise against a defendant because he failed to testify in his defense.

In the per curiam explaining why he refused to sustain the challenge for cause, the trial judge stated: “I was of the opinion that this prospective juror was simply and commendably attempting to reply to the questions asked as honestly as he knew how. Because of his demeanor and the sincere manner in which he responded to the questions, I had no doubt that he would accept my instructions relative to the applicable law.” (Actually, at the trial the defendant did take the stand and testify in his own defense.)

Under all of the circumstances shown, we are unable to say that the trial court abused its broad discretion in ruling on challenges for cause. We are unable to hold that, accepting the juror’s earlier voicing of a position possibly prejudicial to the defendant, the trial court erred in nevertheless deeming the witness impartial and qualified when, upon the court’s further inquiry, the juror unequivocally demonstrated a willingness to decide the case on the evidence presented in accordance with the instructions as to law given the jury by the trial judge. State v. Governor, 331 So.2d 443 (La.1976); State v. Niz, 327 So.2d 301, 326 (La.1975); State v. Johnson, 324 So.2d 349 (La.1975).

The same principles apply in our rejection of Assignment 6. It was taken to the refusal of the court to sustain the defendant’s challenge for cause as to prospective juror Hammon. An isolated response by him which indicated a prejudicial attitude was convincingly shown, upon subsequent examination by the court, to have resulted from a misunderstanding of a question.

Assignment 7 is likewise without merit. The trial court properly sustained a state objection to a defense question attempting to obtain a pre-judgment by the prospective juror as to what his verdict would be on facts hypothesized by the question. State v. Clark, 325 So.2d 802, 806-07 (La.1976).

Impeaching the Jury Verdict

The motion for a new trial contained allegations that the jury verdict was tainted by improper influences: The accused contends that the trial jurors were exposed to papers on the prosecutor’s table which reflected an earlier conviction of the defendant for the same offense (later set aside), and also that one of the jurors was the coworker at a lumber company with a state witness.

The eight jurors subpoenaed denied any knowledge of these allegedly prejudicial circumstances at a hearing on the motion for a new trial. The trial judge properly denied the new trial sought on these grounds. (Assignment 13.)

Likewise without merit is the defendant’s effort to impeach the jury verdict, as advanced by his supplemental motion for a new trial. (Assignment 16.) By this motion, the defendant contends that certain improprieties occurred during jury deliberations.

La.R.S. 15:470 provides that no juror is competent to impeach the verdict of the jury on which he served. The rule is founded on the public interest in finality of jury verdicts and in encouraging frankness of discussion among jurors in their deliberations. State v. Ledet, 298 So.2d 761 (La.1974). This firmly-established rule prevents jurors from impeaching their verdict by disclosure of jury deliberations or even by testimony of misconduct within the jury room. State v. Durr, 343 So.2d 1004 (La.1977).

Other Assignments

The other assignments of error are clearly without merit:

Assignments 1 (prayer for oyer) and 4 (sufficiency of answers to bill of particulars) relate to the denial of pre-trial discovery as to details of the state’s case. The trial court’s rulings do not present reversible error and are in accord with the jurisprudence.

Assignment 2 relates to the trial court’s alleged determination at a preliminary examination that probable cause existed to hold the defendant for trial. Even had the trial court made such a determination (the record actually reflects that the defendant waived the right to a hearing on his motion for preliminary examination), the issue is moot after the defendant has been tried and convicted. State v. Walker, 344 So.2d 990 (La.1977) and the many decisions cited therein.

Assignment 8 relates to admission of a taped statement by the defendant establishing the voluntariness of a confession. Assignment 9 relates to the trial court’s determination as to voluntariness of the confession, the contents of which are not shown by the record. The taped statement was introduced in a predicate outside the presence of the jury. Neither the taped statement nor the confession itself was introduced before the jury. Even assuming any error in the rulings (which we do not), we are at a loss to understand the basis of these assignments of error by the defendant.

Assignment 10 relates to the introduction of a gun into evidence. The testimony shows that, after the shooting, the defendant gave this gun to a witness and further shows an unbroken chain of custody following that until the gun’s introduction into evidence. We find no authority supporting the defendant’s argument that, under the circumstances, the gun could not be admitted until (not only the chain of custody was proven, but also) the ballistics tests had been taken so as additionally to connect the accused’s gun with the shooting of the victim (a shooting which the accused himself admitted).

Assignment 12 relates to the admission of a taped statement of a defense witness introduced into evidence by the state on rebuttal. Proper foundation had been laid in the examination of this witness to impeach her trial testimony (that the victim had a bottle as a weapon in his hand) by proof of this prior inconsistent statement by her (that the victim did not have such a weapon). La.R.S. 15:493. The prior statement was obviously admissible as proper impeachment testimony.

Assignment 13 relates to the denial of a motion for a new trial. In addition to addressing itself to contentions found above by us to be without merit, the motion principally concerns the alleged insufficiency of the evidence by which the defendant was convicted. However, sufficiency of the evidence is regarded as an issue of fact and thus not reviewable by this court, because of the constitutional restriction that its review as to innocence or guilt is confined to questions of law. La. Const. Art. 5, Section 5(C); State v. Gordon, 336 So.2d 793 (La.1976). The trial court’s denial of a new trial does not therefore raise a reviewable issue on appeal insofar as the denial is based upon the trial court’s rejection of an accused’s claim of the insufficiency of the evidence by which he was convicted. State v. Finley, 341 So.2d 381 (La.1976).

Decree

Finding no error, we affirm the conviction and sentence.

AFFIRMED.


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

text:
    In re Roberto R. ALEMAN, Jr. Applying for Admission to the Bar, State of Louisiana.
    No. 59955.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Motion for Reconsideration

Motion granted. The Committee on Bar Admissions is ordered to allow relator, upon complying with requirements other than United States citizenship or residence, to take the bar examination commencing July 11, 1977. The committee shall grade and retain said examination pending further action by this court.

SANDERS, C. J.,

is of the opinion that the application should be denied on the ground that the applicant is not a resident alien as required by Article XIV, § 7(B)c of the Articles of Incorporation of the State Bar Association.

SUMMERS, J.,

dissenting. Since applicant is neither a citizen nor a resident alien, this court cannot administer the qualifications of lawyers in an evenhanded method unless it abides by its own rules.

MARCUS, J., dissents.


text:
    STATE of Louisiana v. Alfred SCOTT et al.
    No. 59973.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: State of Louisiana through the District Attorney for the Parish of Orleans applying for writs of certiorari, prohibition and mandamus. 346 So.2d 710.

Motion to reconsider granted. On the merits, we find no error in the trial court ruling.

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


author: TATE, J.,

text:
    LEE LUMBER COMPANY, LTD. v. INTERNATIONAL PAPER COMPANY.
    No. 59993.
    Supreme Court of Louisiana.
    June 29, 1977.
   In re: Lee Lumber Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, 345 So.2d 212, Third Circuit, Parish of Rapides

Application denied; because the facts relied on by the court of appeal show serious consideration, the result reached is correct.

SUMMERS, J., concurs in the denial of writs, being of the opinion the result is correct.

TATE, J.,

dissents from the denial of this applicant: The majority has found facts justifying a holding of serious consideration, never passed upon by the previous courts. The majority thus does not reach the issue posed by the court of appeal holding, 321 So.2d 42 (La.App. 3rd Circuit, 1975), that actions to declare a null lease are prescribed by Civil Code Articles 2221, 3542. This court should have granted writs to decide this important issue, which in my opinion was incorrectly decided below.

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


author: REDMANN, Judge. SAMUEL, Judge, dissenting. BEER, Judge,

text:
    Edward A. BOUDREAUX v. MAZDA MOTORS OF AMERICA, INC.
    No. 7830.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied June 30, 1977.

      Thomas L. Giraud, Charles A. Verderame, New Orleans, for plaintiff-appellee.
    R. King Milling, John T. Nesser, III, Milling, Benson, Woodward, Hillyer & Pierson, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN, BOU-TALL, SCHOTT and BEER, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment decreeing avoidance of the February, 1974 sale of a new Mazda automobile because of a redhibitory defect and allowing defendant no credit for the use plaintiff had of the car (11,000 miles before demand, 18,000 more before trial). Plaintiff by answer seeks attorney’s fees for the appeal alone. The questions are whether the car was so defective that it “must be supposed”, La.C.C. 2520, that the purchaser would not have bought it had he known of the defect, and, if so, whether credit against the return of the purchase price is due for the use of the car.

There is sufficient evidence, first of disc brake pad glazing (causing ineffectiveness of brakes) and second — according to defendant’s best-qualified expert — of this car’s brakes’ having been used conservatively (eliminating driver abuse as a cause of the glazing), to support the trial judge’s conclusion that the brakes were “seriously defective” and that redhibition was warranted.

There is also sufficient evidence to support the trial judge’s conclusion that the two accidents (in which plaintiff’s car rear-ended others) were caused by the defective brakes. The owner husband’s testimony that the defective brakes caused the second accident is the only evidence of its cause. The trial judge’s attributing the first accident to defective brakes is not inconsistent with the investigating police officer’s testimony that plaintiff’s wife made no complaint at the time of defective brakes (in those words) but told him only that “she applied her brakes, hit a slick spot in the roadway and then came into contact with the other vehicle.” The trial judge’s evident inference, which we hold reasonable, was that the wife’s statement that she had hit a “slick spot” was but an assumption on her part of some reason why the brakes did not work, and that it is more probable than not that the accident occurred because the brakes, now proven defective, did not properly hold. Thus defendants can neither defeat redhibition nor obtain any credit on the theory that the car is not in the same state as when sold, because its not being in the same state is due to its originally defective condition; C.C. 2532 and 2536.

We also affirm the trial court’s determination that the seller has not shown any entitlement to credit for the purchaser’s use of the automobile, unless against the “expense of sale”, by implication from C.C. 2531 (prior to its amendment by La. Acts 1974 No. 673) insofar as use may be equated to fruits. C.C. 2531 originally provided:

The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.

C.C. 2545 provides that the seller who knows of the defect is further liable for damages, but it does not provide that such a seller should get any credit for use or fruits that the good-faith seller is denied by art. 2531. (Our defendant, the manufacturer, is presumed to know the defects of the thing he manufactures; Rey v. Cuccia, La.1974, 298 So.2d 840; Moreno’s Inc. v. Lake Charles Catholic H.S. Inc., La.1975, 315 So.2d 660.)

Included in the expenses of sale are any finance charges, Prince v. Paretti Pontiac Co., Inc., La.1973, 281 So.2d 112, although finance charges for the borrowed portion of the price also constitute the value of the use of that portion of the price, Smith v. Max Thieme Chev. Co., Inc., La.App. 2 Cir. 1975, 315 So.2d 82, so that the fundamental presumption and rule (Farmer v. Fisk, La.1844, 9 Rob. 351; Harvey v. Kendall, 1847, 2 La.Ann. 748; see also Note, 1970, 30 La.L.Rev. 508) of equivalence of use of thing by purchaser and use of price by seller demands that the buyer not both recover the finance charges and defeat the seller’s claim for credit for use (a claim not present in Prince).

There is no proof of the value of the use of the automobile and we therefore reject defendant’s claim for credit except to the extent of the value of use of the purchase price. We especially reject defendant’s theory that we could charge plaintiff 12 cents a mile for his 28,500 miles of use, or $3,420, on a theory like that of Breaux v. Winnebago Industries, Inc., La.App. 1 Cir. 1973, 282 So.2d 763 (which itself noted “no established rule . . . arbitrary assessments . ”, at p. 769). Breaux adopted governmental agencies’ allowance of 12 cents a mile [now 16?] as a reasonable credit. What may be reasonable recompense for use of a $12,000 mobile home, however, is not necessarily reasonable for use of a $4,400 subcompact automobile. (We further note that mileage “allowances” include gasoline, oil, tires, insurance, maintenance, etc. At 12 cents a mile, it would take 100,000 miles of use of the mobile home to equal its $12,000 price; but only 37,000 miles of use of the car would entitled the seller to 100% credit against its $4,400 price.)

Following the Supreme Court in Farmer and Harvey, we adopt the basic equivalence of use-of-thing and use-of-price because no evidence justifies any different result. While we therefore affirm the refusal of credit for use of the car, we do amend to eliminate plaintiff’s recovery of $412.52 finance charge, since to make defendant pay the finance charge would deprive defendant of the use-of-price equivalent to the use of thing which plaintiff has had; Smith, supra. We also amend to make interest on the judgment for return of the price run from the return of the automobile, since plaintiff has continued to exercise the presumably equivalent use of the car at all times.

Finally, on authority of C.C. 2545 (as amended, Acts 1968 No. 84), we grant plaintiff’s request for attorney’s fees for the appeal alone. C.C.P. 862 provides that “a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.” And C.C.P. 2164 provides that “[t]he appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” We have increased attorney’s fees awarded by the trial court to recompense for additional services on appeal in Dunlap v. Chrysler Mtrs. Corp., La.App. 4 Cir. 1974, 299 So.2d 495. We now implement C.C. 2545 for attorney’s fees for the appeal by itself, although attorney’s fees were not prayed for (except in brief) or awarded in the trial court. We award $500 for representation on the appeal alone.

The judgment in favor of plaintiff is reduced to $4,426.59, with legal interest from return of the automobile to defendant, plus $500 attorney’s fees and all costs.

SAMUEL and BEER, JJ., dissenting.

SAMUEL, Judge, dissenting.

I respectfully dissent for the reasons expressed by Beer, J.

BEER, Judge,

dissenting.

I acknowledge that this purchaser has been inconvenienced. Yet, the defects complained of clearly did not render the automobile useless. Quite the contrary. Bou-dreaux had driven the vehicle approximately 29,000 miles by the time of trial and, no doubt, still continues to use it. Furthermore, the vehicle had been in two accidents, causing substantial damages to the body and components. I find no credible evidence to support a finding that defective brakes caused either of those accidents. I believe that the record supports a finding to the contrary. Officer Truman Rudolph Boudreaux testified that he investigated the accident on June 5, 1974. He gave no indication of a problem with the brakes as causing or contributing to the accident. To the contrary, Mrs. Boudreaux stated that the vehicle in front of her suddenly stopped; she applied her brakes, “hit a slick spot in the roadway” and then collided into the rear of the preceding vehicle. The second accident on July 5, 1974, was not even investigated nor was the car repaired thereafter.

Plaintiff further claims that the engine runs “rough” and “misses.” This contention is untenable as a basis for redhibition in light of plaintiff’s unequivocal admission that he uses regular or ethyl gasoline instead of low-lead or no lead which is the recommended fuel. The trial court did not allude to, nor do I find, a redhibitory defect in the engine or its performance.

In my view, the object of the redhibitory action is to place the parties in the same positions they were in prior to the sale as nearly as possible under the circumstances. Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2nd Cir., 1975). Yet, the circumstances here present make that virtually impossible. Accordingly, I believe that a reduction in the purchase price, quanti minoris, should have been the form of relief granted instead of rescission. See: LSA-C.C. Art. 2543; Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir., 1970), writ ref., 256 La. 365, 236 So.2d 499; Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir., 1975).

Accordingly, I respectfully dissent.

      . That the problem was not so simple as defective pads is supported by the testimony of a former Mazda mechanic that one of five cars of plaintiffs model experienced brake trouble and by plaintiffs testimony that replacement pads afforded only temporary relief. Plaintiff was taught to “down-shift” his car so as to use the braking power of the engine to assist in stopping.

      . Despite the ancient categorization of an owner’s rights into usus, fructus, and abusus, we have previously recognized an equality of usus with fructus in concluding that “a [marital] community which uses as its home a house belonging to the husband’s separate estate does receive the ‘profits’ [C.C. 2402] of that house.” Hurta v. Hurta, La.App.1972, 260 So.2d 324, 327.