author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Clarence GARDETTE.
    No. 59912.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury indicted the defendant, Clarence Gardette, with aggravated rape, a violation of LSA-R.S. 14:42. A unanimous jury returned a guilty verdict. The court imposed the death penalty. However, after the United States Supreme Court held the mandatory death penalty for aggravated rape unconstitutional, the court vacated the death penalty and re-sentenced him to twenty years at hard labor.

The defendant appeals. He relies on four assignments of error for reversal of his conviction and sentence. As the defense failed to brief or argue the remaining assignments of error, we consider them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

The victim is a seventy-nine year old widow. The defendant gained entry into her home by posing as her paperboy. Once inside, he admitted an accomplice. They stole a small amount of cash and a television set. The defendant raped the victim, while threatening her with a hammer.

ASSIGNMENT OF ERROR NO. 2

The defendant complains of the denial of two motions to quash attacking the composition of the grand jury venire. Specifically, he alleges that there were no residents of a specified housing project and no people between eighteen and twenty-one years of age in the grand jury venire.

To support a challenge made to the composition of a jury venire, the defendant must demonstrate that there has been a systematic discrimination or exclusion affecting that class in the selection of the jury panel. State v. Taylor, La., 347 So.2d 172 (1977); State v. Haynes, La., 339 So.2d 328 (1976); State v. Jones, La., 332 So.2d 461 (1976).

The defense introduced the following evidence at the hearing on the motions to quash:

The State and the defendant stipulated that no grand juror was between eighteen and twenty-one years of age. However, the names placed in the grand jury venire were blindly selected from the voting rolls which contain names of people between eighteen and twenty-one. Further, the jury commissioner testified that the process servers had the discretion to serve any people in any area and that he did not know whether they served any resident of that specific housing project.

This evidence does not indicate that there has been any discrimination. Young people were included in the grand jury ve-nire. No satisfactory evidence shows that residents of that housing project were not served. We hold that the' defendant has failed to sustain the burden of proving systematic exclusion of these two groups. Thus, the trial court correctly overruled his motions to quash.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant avers that the court erred in overruling his motion for a directed verdict. In denying the motion, the judge stated that Act No. 527 of 1975, an amendment to Louisiana Code of Criminal Procedure Article 778, prohibits a court from directing a verdict in a jury trial. In brief, the defendant alleges that the application of this amendment to criminal trials after its effective date, September 12, 1975, renders it unconstitutional as an ex post facto law.

The defense failed to raise this issue at trial. Thus, as he argues it for the first time on appeal, we may not treat it. State v. Ford, La., 349 So.2d 300 (1977); State v. O’Blanc, La., 346 So.2d 686 (1977); State v. Porter, La., 344 So.2d 1031 (1977).

Assuming, however, that the defense properly presents this constitutional argument for our review, we hold that the trial judge correctly overruled the motion for a directed verdict. The authority of a trial judge to grant a directed verdict of acquittal in a jury trial is strictly a procedural matter. This amendment to Article 778 does not divest the defendant of any substantive rights. State v. Clark, La., 340 So.2d 208 (1976); State v. Marks, La., 337 So.2d 1177 (1976).

In State v. Sepulvado, La., 342 So.2d 630, 635 (1977), we stated:

“Procedural laws relate exclusively to questions of remedy and, in criminal cases, pertain to the method prescribed for the conduct of the prosecution. Enactments of this nature may regulate the mode of prosecution after their effective date and not offend the prohibition against ex post facto laws, for no one has a vested right in a mere mode of procedure. Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972). See also Fithian v. Centanni, 159 La. 831, 106 So. 321 (1925).”

We conclude that there is no constitutional infirmity in the statute as applied.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

The defendant complains of the denial of his motion for a new trial. He asserts two grounds in the motion: that he was entitled to have a separate indictment filed against him, and that the court improperly polled the jury.

Firstly, he contends that Louisiana Code of Criminal Procedure Article 705 requires the State to file separate indictments since this Court ordered the charges against him and his co-indictee severed.

After the court overruled the motion for directed verdict but prior to oral argument, the defense asserted that no separate indictment had been filed against Gardette as required after a severance. The trial judge overruled the objection, and the matter was unsuccessfully reurged in the motion for a new trial.

The defendant relies upon Article 705 of the Louisiana Code of Criminal Procedure, which provides:

“When the court has ordered severance of an indictment, the district attorney shall file separate indictments.
“In the case of a grand jury indictment, no further action by the grand jury is required. Severed indictments shall be considered as filed on the date of the filing of the original indictment. Proceedings under the original indictment are not affected by the severance except insofar as they may be inconsistent with some other provision of this Code. The effects of a severance, as stated in this article, apply to severances under Articles 532(3) and 704.”

Since the defense presented this objection for the first time near the end of the trial, we regard the objection as untimely. LSA-C.Cr.P. Art. 841. See State v. Ford, 259 La. 1037, 254 So.2d 457 (1971).

Assuming, however, that the objection was timely made, we discern no error. The grand jury jointly indicted the defendant and Edward Wilson for aggravated rape. On motion of Wilson, this Court ultimately granted a severance. State v. Wilson, La., 319 So.2d 446 (1975). After the severance had been granted, the State proceeded against Gardette alone under the indictment. We regard the action taken as substantial compliance with the article. No new indictment by the grand jury was required. LSA-C.Cr.P. Art. 705, Comment (c).

The second ground urged in his motion for a new trial arises from his request that the court poll the jury. In his brief, defendant contends that the court improperly polled the jury by a system in which each juror wrote his verdict and name on a separate piece of paper. He apparently refers to the “written polling” introduced by Act 475 of 1975, amending Louisiana Code of Criminal Procedure Article 812, which became effective prior to the present trial.

The sole reference to the polling appears in the minutes. The minutes recite:

“On Motion by the Defense, the jury was polled and found to be unanimous. The Court ordered the verdict recorded.” [R. p. 13.]

The minutes do not reflect the procedure used.

Louisiana Code of Criminal Procedure Article 841 prohibits us from reviewing the correctness of this procedure since the record does not reflect that the defendant voiced a contemporaneous objection to the polling. State v. Sosa, La., 328 So.2d 889 (1976), and the cases cited therein.

These assignments of error are without merit.

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

      . Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976).


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Shirley SMITH and Benjamin deManuel.
    No. 59985.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Paul A. Bonin, New Orleans, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., New Orleans, for plaintiff-respondent.
   CALOGERO, Justice.

Defendants Shirley Smith and Benjamin deManuel were charged by bill of information with resisting an officer in violation of R.S. 14:108. After a judge trial in the Criminal District Court for the Parish of Orleans the defendants were found guilty as charged. Each was sentenced to serve five (5) months in Parish Prison and pay a fine of sixty-five (65) dollars or serve an additional thirty (30) days in jail. On appeal to the Appellate Division of the Criminal District Court defendants’ convictions and sentences were affirmed. Thereafter, defendants made application to this Court for supervisory writs. We granted defendants’ application, 347 So.2d 265 (La.1977), and ordered a stay of their sentences pending further action by this Court.

The facts which preceded the defendants’ arrests are as follows: On October 4, 1976 several members of the New Orleans Police Department visited the residence of defendant Shirley Smith to inquire about the location of one Gregory Smith who was wanted for his alleged participation in an armed robbery which had taken place three days earlier. Based on their knowlédge that Gregory Smith was the son of defendant Shirley Smith and on information supplied by the suspect’s grandmother and another police officer that the suspect had been seen in that vicinity, the officers had reason to suspect that Gregory Smith was present at the defendants’ residence (defendant de-Manuel was apparently Shirley Smith’s common law husband). Upon their arrival the officers, who had neither an arrest warrant nor a search warrant, were admitted to the front room of the defendants’ home where they began to question the defendants. Then present in the room with the police and defendants were defendant Smith’s daughter, daughter-in-law, granddaughter and son (other than Gregory). The officers were told that no one else was in the house. Not satisfied with the defendants’ response that Gregory Smith had fled to California, the officers requested defendants’ permission to search the remainder of the house. Defendants, who had positioned themselves in the entrance of the hallway which led to the remainder of the house, denied them permission. Two of the officers testified that defendants were quite nervous and that defendant Smith was sweating profusely. At that point the officers heard a noise in the rear of the house, whereupon they attempted to gain access to the hallway. One of the officers, after making an unsuccessful attempt to move defendant deManuel to the side, shoved deManuel out of the way. As the police then proceeded down the hallway they received a call over their radio from other police officers who had remained outside of the house that someone was attempting to climb out of a rear window. The officers rushed to the rear bedroom, found the suspect Gregory Smith, and arrested him. Thereafter, both Shirley Smith and Benjamin deManuel were arrested and charged with harboring a fugitive. These charges were apparently dropped, however, and the defendants were tried and convicted on an alternate charge of resisting an officer. Defendants rely on three assignments of error for reversal of their convictions.

ASSIGNMENT OF ERROR NO. 1

In this assignment defendants contend that the search for and arrest of Gregory Smith was illegal, and that they therefore could not be found guilty of resisting an individual who was “authorized by law to make a lawful arrest.” We find no merit in this contention.

Article 213 of the Code of Criminal Procedure provides:

A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
(2) The person to be arrested has committed a felony, although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
(4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest.

The standard by which the presence of “reasonable cause” to arrest a person without a warrant is to be determined in a particular case is well established in our jurisprudence. It exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to justify an average man of caution in the belief that a felony has been or is being committed. State v. Phillips, 347 So.2d 206 (La.1977); State v. Linkletter, 345 So.2d 452 (La.1977); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966).

In the present case the policemen clearly had reasonable cause to arrest Gregory Smith. The victim of the armed robbery and a witness had both related that one Gregory Smith was the perpetrator, and had chosen his photograph from a group presented them shortly after the robbery.

However, in addition to having the “reasonable cause” to arrest, the more serious question is whether the police had a right to arrest Gregory Smith at the time and place and in the manner in which they did.

Had the officer entered the dwelling for the purpose of arresting Gregory Smith without search and/or arrest warrants and without exigent circumstances, such as hot pursuit, a respectable argument might be presented that the arrest would have been illegal.

In this case, however, the officers had entered the dwelling with permission, and even without the occupants’ assent to go into the rear of the house were confronted with exigent circumstances warranting the intrusion into the rear. The facts related more fully hereinabove prompted a reasonable suspicion on their part that the wanted armed robber was on the premises. That suspicion rose to probability when they heard a noise emanating from the assertedly unoccupied rear part of the house. The possibility, indeed likelihood, that Gregory Smith would attempt to escape, with or without a potentially dangerous confrontation, constituted exigent circumstances warranting the intrusion and arrest.

Therefore, since the warrantless arrest of Gregory Smith was legal the defendants’ contention that they had a right to resist, or interfere with, an unlawful arrest is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges in this assignment that even if the arrest of Gregory Smith was legal they could not be guilty of obstructing the police officers since they did not believe that the officers were acting lawfully.

Defendants rely on State v. Gros, 216 La. 103, 43 So.2d 232 (1949), which established that “scienter” is an element of the offense. However Gros does not hold that the offender must know that the arrest he resists (or interferes with) is a lawful one, but rather that the offender must be aware that the person he resists is acting in his official capacity. This the defendants knew.

The assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

In the final assignment of error defendants contend that the state presented no evidence whatever that defendants had opposed, resisted or obstructed the officers within the meaning of R.S. 14:108.

The facts essential to a consideration of this assignment are related hereinabove, at least as respects defendants’ actions, legally justified, up to the point at which the officers heard the noise and acquired the right to enter the rear of the house. From that point the only evidence in the record indicative of opposition, resistance or obstruction of the police officers was the testimony of Officer Radosti that when he attempted to gain access to the hallway, defendant de-Manuel would not move. Officer Radosti stated further, “. . .1 tried to move him and he didn’t move. So I shoved him.”

There is no indication from the record, however, that Shirley Smith did anything in the way of obstruction or resistance from the time the officer attempted to get into the hallway. There is not even an indication that her position at the time obstructed the way of the officers.

On a motion for a judgment of acquittal or for a new trial premised on an absence of essential elements of a crime, our review is limited to determining whether there is a total lack of evidence to prove the offense or any element thereof. State v. Reeves, 342 So.2d 605 (La.1977). In this case there is some evidence of obstruction or resistance by defendant deManuel but none whatever by defendant Smith. Thus, we find that though the assignment is not meritorious with respect to deManuel, it is indeed meritorious as to Shirley Smith.

Decree

Por the above reasons we affirm the conviction and sentence of defendant Benjamin deManuel; we reverse the conviction and sentence of defendant Shirley Smith and order her discharged.

CONVICTION AND SENTENCE OP DEFENDANT BENJAMIN deMANUEL AFFIRMED.

CONVICTION AND SENTENCE OF DEFENDANT SHIRLEY SMITH REVERSED.

SUMMERS, J., concurs as to the reasons assigned relative to deManuel and dissents as to Smith.

DIXON, J., dissents as to de Manuel and concurs as to Smith.

      . La.R.S. 14:108 provides:
      Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.

        The phrase “obstruction of” as used herein shall, in addition to its common meaning, signification and connotation mean:
      (a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
      (b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
      (c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
      (d) Congregates with others on a public street and refuses to move on when ordered by the officer.
      Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.

      . See State v. Ranker, 343 So.2d 189 (La.1977):
      “The United States Supreme Court has not yet resolved the issue of whether the Fourth Amendment requires a warrant for non-exigent arrests within the home. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (footnote 6, and separate concurring opinions of Justices Powell and Stewart); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (footnote 13). Nevertheless, the Supreme Court has not been entirely silent with respect to the issue. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a majority of the Court agreed with the following proposition:
      “It is clear, then, that the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without a warrant are per se unreasonable in the absence of some one of a number of well defined ‘exigent circumstances.’ ” 403 U.S. at 477-78, 91 S.Ct. at 2044, 29 L.Ed.2d at 589-90.
      The Court further noted in Coolidge, that: “The case of Warden v. Hayden [387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)], where the Court elaborated a ‘hot pursuit’ justification for the police entry into the defendant’s house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances.” 403 U.S. at 480-81, 91 S.Ct. at 2045, 29 L.Ed.2d at 591.”

      . This argument was presented in brief to the Appellate Division and found to be without merit. We construe that articulation for what it essentially was, a motion for judgment of acquittal in a tribunal having jurisdiction of the facts and the law. The assignment in this Court is, in effect, therefore, a complaint that the Appellate Division erred in finding the motion without merit.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Joe A. TERRELL.
    No. 60040.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Frank J. Gremillion, Cyrus J. Greco, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-relator.
   SUMMERS, Justice.

The East Baton Rouge Parish Grand Jury returned an indictment against Joe A. Terrell, which as amended, charged in two counts that he failed to file his income tax returns with the Collector of the Department of Revenue for the years 1974 and 1975 within the time period fixed by law. The indictment alleges these failures were violations of Sections 103 and 107 of Title 47 of the Revised Statutes. The pertinent parts of these statutes provide:

“Returns made on the basis of the calendar year shall be made and filed with the collector at Baton Rouge, Louisiana, on or before the 15th day of May, following the close of the calendar year. Returns made on the basis of a fiscal year shall be made and filed on or before the 15th day of the fifth month following the close of the fiscal year with the collector at Baton Rouge, Louisiana.” La.Rev.Stat. 47:103 A
“Failure to file a return with the Department of Revenue in accordance with the requirements of this Sub-part and within the time periods specified in R.S. 47-103 shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months, unless approval for a delay in filing is authorized by the collector of revenue in writing and in addition, the penalties set forth in R.S. 47:1602 shall be invoked. .” La.Rev.Stat. 47:107 (as added by Acts 1970, No. 454, § 1)

A timely motion to quash was filed by Terrell alleging that Section 107 is unconstitutional in that it is overly broad, condemns noncriminal activity as criminal and Section 107 and Section 1642, both of Title 47 of the Revised Statutes, provide different penalties for the same offense, giving the State unrestricted choice of penalties.

A hearing was held on the motion to quash on May 31, 1977 and the trial judge sustained that motion. In oral reasons assigned by the trial judge he found Section 107 “contrary to fairness”, lacking a required criminal intent and therefore unconstitutional.

The State objected to the ruling and announced its intention to apply for writs. Certiorari was granted and the matter is considered as on appeal.

Defendant concedes that a statute may make criminal offenses which are merely malum prohibitum, not requiring either general or specific intent. However, his sole contention on this appeal is that a statute cannot constitutionally create a crime where the criminal consequences, or the result condemned, is merely a result or an effect totally independent of any intentional conduct on the part of the offender. Thus, it is argued, the statute punishes the fact that the tax returns were not timely filed, a fact which may be completely unrelated to any intentional act on the part of the accused.

Although the argument shrouds the issue in semantics, it amounts to a claim that criminal conduct requires intent to do or fail to do something. The argument is specifically answered by Article 8(2) of the Criminal Code (La.Rev.Stat. 14:8(2)). In defining criminal conduct the article states that it may consist of “[a] mere act or failure to act that produces criminal consequences, where there is no requirement of criminal intent.” [Emphasis ours].

A crime may therefore be enacted where there is no requirement of criminal intent when there is a failure to act which produces criminal consequences. Thus not filing timely in this case, a failure to act, resulted in no timely tax return by the defendant, a criminal consequence.

It was also pointed out in the defendant’s brief that then pending legislation which subsequently became Act 527 of 1977, effective September 9, 1977, amended Section 107 by requiring that the failure to file be “intentional”, repealing all laws or parts of laws in conflict therewith. It is suggested that the effect of the amendment and repeal was to require the quashing of the indictment because the crime charged was devoid of intent and could no longer stand.

The argument lacks merit.

“The repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.” La.Rev.Stat. 24:171.

Nor does re-enactment or amendment of a penal statute extinguish or alter the liability or penalty of the former statute, unless the legislature so intends. This is the general rule adopted by this Court. State v. Paciera, 290 So.2d 681 (La.1974).

For the reasons assigned, the judgment of the trial court is reversed and set aside and the case is remanded for further proceedings not inconsistent with law and the reasons assigned.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Roger Dale DOUCET.
    No. 60287.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Dennis R. Sumpter, Sumpter & Schrumpf, Sulphur, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

On June 30,1976 Dennis R. Sumpter was appointed by Judge L. E. Hawsey, Jr. of the Fourteenth Judicial District Court to represent Roger Doucet in the prosecution titled “State of Louisiana v. Roger D. Doucet, No. 10083-76.” After his appointment Act 653 of 1976 was enacted, amending and re-enacting the statutes providing for the appointment and compensation of attorneys for indigent defendants. (R.S. 15:141 et seq.). In March, 1977 Sumpter applied to the Indigent Defender Board for compensation for services rendered in the appointment. The Indigent Defender Board refused Sumpter compensation, stating that it was without authority to pay attorneys appointed prior to the effective date of Act 653. Sumpter then filed a motion to traverse the indigency of the defendant and to traverse his court appointment. After a hearing, the trial court denied the motion. We granted Sumpter’s application for supervisory writs (at the same time maintaining his appointment and denying a stay order) in order to review the trial court’s ruling.

Counsel contends that his appointment is no longer effective because it was made under the authority of R.S. 15:141 et seq. prior to its amendment by Act 653. The argument is without merit. The record reflects that Sumpter was appointed by the court to represent the defendant. As stated in State v. Campbell, 324 So.2d 395 (La.1975), “the court has the inherent power to appoint lawyers to represent indigents, and the duty of the lawyer to serve is both traditional and specific.” 324 So.2d at 397. See also Code of Professional Responsibility, Ethical Consideration 2-25; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Sumpter’s appointment was made under the inherent powers of the court and the subsequent amendment of R.S. 15:141 et seq. did not affect its validity.

Defense counsel’s argument that an appointment without compensation violates the lawyer’s rights under the Fifth and Fourteenth Amendments has consistently been rejected in other cases on grounds that there is no “taking” where the lawyer performs a duty required of him in his exercise of the privilege of membership in the bar. See Tyler v. Lark, 472 F.2d at 1077 (8th Cir. 1973) cert. denied sub nom. Beilenson v. Treasurer of United States, 414 U.S. 864, 94 S.Ct. 114, 38 L.Ed.2d 84 (1973); Wright v. Louisiana, 362 F.2d 95 (5th Cir. 1965); U. S. v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966); see State v. Bryant, 324 So.2d 389 (La.1975).

The question of counsel’s right to compensation by the Indigent Defender Board, pursuant to R.S. 15:141 et seq. as amended, is not properly before the court. No statutory provision permitting such action is cited. The trial court has no authority to render a money judgment for compensation against the state in a summary proceeding in a criminal case. State v. Carruth, 324 So.2d 400 (La.1975); State v. Cummings, 324 So.2d 401 (La.1975). It is not clear that Sumpter sought such a judgment in the case before us. He did, however, complain in his motion that he would not be paid, and obtained a rule to show cause (why he should not be relieved of his appointment) against the Indigent Defender Board of Calcasieu Parish. The trial court correctly denied the motion.

For these reasons, the ruling of the trial court denying the motions filed by Dennis R. Sumpter and maintaining his appointment as counsel for defendant is affirmed.

      . In his opinion No. 77-58, the attorney general ruled that funds “appropriated or generated under Act 653 of 1976” could not be used to pay attorneys appointed under the old act for services rendered after the effective date of the new act.


text:
    STATE of Louisiana ex rel. Albert CLARK v. Hon. Frank A. MARULLO, Judge Criminal District Court, Section “D”, Orleans Parish.
    Nos. 59667 and [59913 (on appeal)].
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      John M. Lawrence, New Orleans, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for respondent.
   DIXON, Justice.

On February 13, 1975 defendant Albert Clark was charged by bill of information with armed robbery in violation of R.S. 14:64. On March 10, 1975 defendant pleaded guilty and was sentenced to five years at hard labor. Soon thereafter the defendant learned that, contrary to a pre-plea agreement, the State intended to charge him as a multiple offender. On March 12, 1975, upon motion of the defendant, the trial court allowed the guilty plea to be withdrawn and set aside the sentence. The defendant was later brought to trial and on May 6, 1975 the jury returned a verdict of guilty of armed robbery. Defendant was thereafter sentenced as a multiple offender to serve thirty-three years at hard labor. On March 15, 1977, while his appeal from the second conviction was pending, defendant filed in the district court a motion to correct an illegal sentence based on the trial court’s lack of authority to set aside his original guilty plea and the sentence. The trial court denied the motion. This court granted defendant’s application for certio-rari (captioned by defendant as a “motion for remand”) and ordered it consolidated with his appeal.

ON THE WRIT (No. 59667)

Defendant contends through this writ that his trial and conviction are invalid because of the constitutional protection against twice being placed in jeopardy. The basis of the argument is that the trial court did not have jurisdiction to allow the defendant to withdraw his guilty plea after sentencing and therefore the first conviction and sentence remain in effect.

This is not the first case presenting the issue to this court. In State v. DeManuel, 321 So.2d 506 (La.1975), the defendant pleaded guilty to armed robbery and was sentenced to serve seven years at hard labor. The district attorney later informed the defendant that he would be charged as a multiple offender, so the defendant filed in the district court a motion to withdraw his guilty plea. After a hearing, the trial judge granted the motion and the plea and sentence were set aside. After further negotiation with the district attorney, the defendant pleaded guilty a second time and was sentenced to fourteen years imprisonment. The defendant filed a motion to withdraw his second plea within a month. After another hearing, this motion was denied. On appeal this court held that because C.Cr.P. 559 permits the withdrawal of a guilty plea only before sentencing, the ruling of the trial judge permitting the withdrawal of the first plea was invalid. We stated that the proper procedure for obtaining review of an illegal sentence is through appeal or writs of certiorari or habeas corpus. See also State ex rel. Hebert v. Henderson, 290 So.2d 832 (La.1974); State v. Ballard, 282 So.2d 448 (La.1973); State v. Willis, 279 So.2d 192 (La.1973).

The curious situation created by the strict enforcement of C.Cr.P. 559 is that while a trial judge does not have jurisdiction to allow the withdrawal of a guilty plea through ordinary procedures, he does have that authority if the same request be made through application for habeas corpus as a post-conviction remedy.

The writ of habeas corpus, the primary instrument for safeguarding individual liberty against unlawful state action, is designed to provide a speedy and efficient medium for judicial inquiry. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Because of its essential function, arbitrary and unnecessary requirements of form and pleading should not be allowed to obstruct its effectiveness. See Harris v. Nelson, supra; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686 (1948).

C.Cr.P. 2 provides that the provisions of the code are “. . . intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.” In light of this provision, it would not be reasonable to hold that a motion may not be heard and relief granted merely because it is not ^labeled “habeas corpus.”

The trial court properly exercised its post-conviction jurisdiction when it granted the defendant the relief requested in his motion. State v. DeManuel, supra, is overruled to the extent that it is inconsistent with this decision. We hold that the trial court may properly vacate a plea of guilty and set aside the sentence thereunder when it determines that the facts surrounding the guilty plea render it constitutionally deficient.

There is no merit in the writ application.

ON THE APPEAL (No. 59913)

The facts are as follows. On February 7, 1975 two men entered a New Orleans laundry and demanded money. While one of the two, later identified as Victor Armstrong, held a gun on the employees, the other gathered a bundle of clothing and took money from the pockets of the laundry employees. After the men left, one of the employees ran out of the shop, shouting that he had been robbed. Armstrong, who was then approximately seventy-five feet from the store, turned and shot at the employee. The owner of the laundry, who had witnessed the robbery while standing a short distance from the door, got into his car and gave chase. During the chase, the man later identified as the defendant, ran into the owner’s car. Still later in the chase, Armstrong fired a shot at the owner’s car — the pellet going through the windshield before coming to rest on the seat. When the defendant was arrested soon after the robbery he was in possession of the pistol used in the robbery and in the shooting.

Defendant relies upon arguments on fourteen assignments of error for reversal of his conviction.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying a motion to suppress identification made soon after the robbery. At the hearing on the motion, Frank Roan, Sr., the owner of the laundry, testified that he saw the two men as they left the laundry, and that he began to chase them in his car. He also testified that one of the men ran into his car during the chase. After the defendant was arrested he was placed in the back seat of a police car. Roan was taken to the car by the police and there identified the defendant as one of the two men. At trial no reference to this identification was introduced. Roan testified, however, that the defendant “looked like” the robber.

Defendant contends that the identification after the arrest was unconstitutionally suggestive and that there was no basis for a valid in-court identification.

While one-on-one confrontations between the suspect and the victim are not favored, identifications made in this manner are permissible when justified by all of the circumstances. State v. Frank, 344 So.2d 1039 (La.1977); State v. Lee, 340 So.2d 1339 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976). In Frank, we stated that such identifications are “. . . permissible when the police apprehend a suspect within a relatively short time after the crime and bring him to the scene for an on-the-spot identification. This immediate confrontation assures the reliability of the identification as the perpetrator’s appearance is fresh in the witness’s mind, lessens the possibility that the perpetrator will change his clothes or appearance, and insures the early release of innocent subjects.” 344 So.2d at 1041. In the present case, the identification was made immediately after the arrest. Prior to the identification, the witness had seen the defendant twice — once as he was leaving the laundry and a second time when he ran into the car.

Even assuming that it was error for the trial court to deny the motion to suppress, it does not warrant a reversal of the conviction because no evidence concerning this identification was introduced at trial and the witness failed to make a positive in-court identification. The assignment is therefore without merit.

Assignment of Error No. 2

During the voir dire examination, the prosecuting attorney proposed the following hypothetical situation in explanation of the legal term “principal”:

“. . . Now, like I said if two people go in a place with a gun and rob somebody or kill somebody, I am not going to use that analogy for robbery because of this man’s problem ... if two people go in with a gun and kill somebody, and one person . . .”

Defense counsel immediately objected to the reference to killing on grounds that the defendant was not on trial for murder. Before the trial court ruled on the objection the prosecutor withdrew the above hypothetical and posed a second, dealing with’a hypothetical robbery. Defendant contends that the trial court erred in overruling his objection.

The assignment is without merit. The trial court never actually ruled on the objection because the question was withdrawn. Defense counsel failed to reurge his objection after the second hypothetical question.

Assignments of Error Nos. 3, 5, 6, and 7

Defendant argues through these assignments that the trial judge erred in allowing the introduction of certain physical evidence at trial. Specifically, the defendant objected on grounds of relevancy to the introduction of a pistol recovered from the defendant, a photograph of the clothing taken from the laundry, a photograph of a pellet found in the laundry owner’s car and the pellet itself, and three spent shell casings and two live rounds recovered from the pistol. “

Relevant evidence is defined as that “tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.” R.S. 15:441.

In the present case, testimony at trial linked each of the items introduced to either the defendant or his accomplice. Because each was relevant to the offense, the trial judge did not err in admitting them into evidence. The assignments are without merit.

Assignment of Error No. 9

Defendant contends that it was error for the trial judge to deny his motion for a directed verdict. The motion was made on grounds that the State failed to prove all of the allegations made in its opening statement.

The trial of this case was conducted prior to the amendment of C.Cr.P. 778 which made directed verdicts unavailable in jury trials. Under the former jurisprudence the only issue presented on appeal by a motion for directed verdict is whether there was no evidence of the crime or an essential element of the crime. State v. Clark, 340 So.2d 1302 (La.1976); State v. Kaufman, 331 So.2d 16 (La.1976).

There was ample evidence introduced at trial demonstrating that the defendant entered the store with the other man and took money and clothing while his partner brandished a gun. This constitutes at least “some” evidence of his participation in the offense as a principal. R.S. 14:24. Without a showing of prejudice or bad faith, the failure of the State to prove all of the allegations made in its opening statement does not warrant a reversal of the conviction. See State v. Green, 343 So.2d 149 (La.1977).

Assignment of Error No. 10

Defendant contends that the trial court erred in refusing to admonish the jury after the following statement in the State’s closing argument:

“BY MR. PETERS:
Ladies and gentlemen, as I told you when we started off, I had a chance to put on rebuttal witnesses, and I didn’t. I didn’t think there was anything to rebut. The only witnesses that came up for the defense were—
BY MR. LAWRENCE: (Interrupting)
Your Honor, the prosecutor is on dangerous grounds. I would like to caution him now, before he goes any further, I would like to have the Court’s warning.”
C.Cr.P. 770(3) provides, in pertinent part:
“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense; or
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

In order to constitute grounds for a mistrial under C.Cr.P. 770(3), the reference to the defendant’s failure to testify must be such as to direct the jury’s attention to that failure. State v. Johnson, 345 So.2d 14 (La.1977); State v. Reed, 284 So.2d 574 (La.1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972).

Initially, it should be noted that the defendant’s objection appears to request that the prosecutor be warned of the danger in referring to the defendant’s failure to testify. If so construed, the objection would not be sufficient to preserve the issue for consideration on appeal. Even interpreting the defense counsel’s objection liberally to mean a request for a jury admonition, there does not appear to be error in the trial court’s ruling. The comment, though not completed, was directed toward the lack of evidence refuting the State’s case, and thus proper argument. State v. Sims, 346 So.2d 664 (La.1977); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972).

The assignment is without merit.

Assignment of Error No. 11

During the State’s rebuttal argument, the prosecutor prefaced several statements with phrases such as “First off he told you . . . “And he’s going to tell you . . . “Now, Mr. Lawrence is going to tell you . . Defendant objected and requested that the prosecutor be admonished because the remarks inferred that the defendant would be expected to make the suggested arguments when in fact no such opportunity would exist under C.Cr.P. 765. Defendant assigns as error the failure of the trial court to admonish the prosecutor.

While the words were ill-chosen, it does not appear that the defendant was prejudiced by the argument. The argument, properly interpreted, referred to arguments already made by the defendant. Further, the jury had been previously informed by defense counsel himself that there would be no opportunity for further argument after the State’s rebuttal argument.

The assignment is without merit.

Assignment of Error No. 12

Defendant assigns as error the denial of his motion for new trial based on the State’s failure to prove the allegations made in its opening statement and its failure to comply with the defendant’s pre-trial request for the discovery of exculpatory evidence. The first ground is without merit. (See discussion under Assignment of Error No. 9).

The second ground is based on the principle that the State may not suppress evidence that is favorable to the defendant and material to guilt or punishment when that evidence is requested by the defendant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Robinson, 342 So.2d 183 (La.1977). Material evidence for this purpose is that which, when considered in the context of the full record, creates a reasonable doubt about guilt which did not otherwise exist. U. S. v. Agurs, supra; State v. Williams, 349 So.2d 286 (La.1977).

Defendant contends that the trial court erred in refusing to grant a new trial because the State failed to inform the defendant of its inability to find defendant’s fingerprints on the pistol used in the robbery and of the inability of the victims of the crime to positively identify the defendant.

The evidence concerning the fingerprints does not fall within the Agurs definition of material evidence because of the fact that three police officers testified that defendant was in possession of the pistol when he was arrested.

Assuming, without deciding, that the inability of the victims to identify the defendant meets the Agurs test of materiality, the failure of the State to disclose that fact does not require reversal, because the defendant has not shown that he was prejudiced by that failure. The defendant learned, before trial, at the hearing on the motion to suppress, that the victims could not positively identify him.

The assignment is without merit.

Assignment of Error No. 13

Defendant, through this assignment, attacks the constitutionality of the Louisiana Habitual Offender Law, R.S. 15:529.1, on grounds that it violates the prohibition against cruel, excessive or unusual punishment (Art. 1, § 20, La.Const.) and it deprives the defendant of his right to a jury trial. This court has repeatedly upheld the constitutionality of R.S. 15:529.1 against similar attacks. State v. Badon, 338 So.2d 665 (La.1976); State v. Jolla, 337 So.2d 197 (La.1976); State v. Montana, 332 So.2d 248 (La.1976).

The assignment is without merit.

Assignment of Error No. 14

Defendant contends that the trial court erred in refusing to grant a motion for a directed verdict during the habitual offender proceeding on grounds that the State failed to establish the date of his discharge on the earlier sentence.

Defendant was convicted of the present offense on May 6, 1975 and his earlier conviction occurred on June 26, 1972. It is not necessary for the State to prove the discharge dates when, as here, less than five years have passed since the prior conviction.

The assignment is without merit.

Assignment of Error No. 15

Defendant contends that his thirty-three year sentence constitutes error patent on the face of the record on grounds of double jeopardy and because the enhanced penalty was based on the conviction of an offense that while classified as a felony at the time of the conviction, would now be considered a misdemeanor. The double jeopardy argument was discussed above in the discussion of the writ.

In State v. Sawyer, 350 So.2d 611 (La. 1977), the same issue was presented to this court. In that decision the majority held that the classification of the offense at the time of the conviction determines its character for the enhancement of the penalty. Thus, under the present jurisprudence, the assignment is without merit.

Assignment of Error No. 4 was neither briefed nor argued and therefore it is deemed abandoned.

Assignment of Error No. 8 was expressly abandoned in brief and will not be considered.

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

      . C.Cr.P. 559 provides:
      “The court may permit a plea of guilty to be withdrawn at any time before sentence.
      The court shall not accept a plea of guilty of a felony within forty-eight hours of the defendant’s arrest. When such a plea has been accepted within the forty-eight hour period, the court, upon a motion filed by the defendant within thirty days after the plea was entered, shall set aside the plea and any sentence imposed thereon.
      When a plea of guilty has been withdrawn or set aside, the plea and the facts surrounding its entry shall not be admissible in evidence against the defendant at a trial of a case.” The comments to that article state that the majority of jurisdictions similarly provide that the court can grant a motion to withdraw a guilty plea only before sentence. In contrast, the ABA Project on Minimum Standards for Criminal Justice — Standards Relating to Pleas of Guilty, 2.1, in accordance with Federal Rule of Criminal Procedure 32(d) provides:
      “(a) The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.
      (i) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.”

      . The motion in this case was not a written motion, but rather an oral motion made in open court and reflected in the minutes. Normally, an application for habeas corpus relief must be made in writing. C.Cr.P. 353. However, because a reversal solely on the ground that the motion was not in writing would result in the repetition of the events leading to this appeal, thus subverting the interest in judicial econo'my, and, more importantly, because we have found defendant’s trial to be fair and free of reversible error, we find defendant’s oral motion adequate under these circumstances.


text:
    STATE of Louisiana v. David L. BAGLEY.
    No. 60640.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: David L. Bagley, applying for writs of certiorari, prohibition and mandamus.

Writ denied. Since relator cannot be sentenced to jail under La.R.S. 32:415, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) is not applicable here. Hence, ruling of trial judge is correct.

SANDERS, C. J., concurs in the denial of the writ.


text:
    STATE of Louisiana ex rel. Vernell RICHARDSON v. Judge Israel M. AUGUSTINE, Jr., et al. Criminal District Court.
    No. 60599.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Vernell Richardson applying for writ of mandamus.

Granted. District judge ordered to vacate and set aside previously imposed sentence and sentence relator to life imprisonment at hard labor without eligibility for probation, parole or suspension of sentence for twenty years, the penalty for second degree murder at the time this offense was committed on August 8, 1973. La.R.S. 14:30.1, as added by acts 1973, No. 111. See State v. Jenkins, 340 So.2d 157 (La.1976).


text:
    In re WRESTLE, INC.
    No. 60611.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Wrestle, Inc. applying for writs of certiorari, prohibition, mandamus and review.

Writ granted. The massive seizure of publications without an adversary proceeding involving this applicant was constitutionally insufficient; A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, and is set aside.

SANDERS, C. J., and SUMMERS, J., are of the opinion that the appropriate action is to reduce the seizure to a single publication.


author: TATE, J.,

text:
    Eugene N. COOKMEYER v. Joann Karl COOKMEYER.
    No. 60796.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Joann Karl Cookmeyer applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 349 So.2d 366.

Writ granted. Remanded to the court of appeal with instructions to decide the case on the merits of the issues presented.

TATE, J.,

concurs. The dicta in Butler v. Butler, 228 So.2d 339 (La.App. 1st Cir. 1969) relied upon by the respondent is not factually applicable to the present circumstances. Furthermore, in Butler the court of appeal decided the community-separable property issues on their merits.


text:
    STATE of Louisiana v. Conrad MANDINO.
    No. 60659.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Conrad Mandino applying for writs of review and certiorari.

Not considered. The district court cannot grant an extension of the time for applying for writs after the time for applying has expired. See State v. Foret, 245 La. 187, 157 So.2d 733.


text:
    STATE of Louisiana v. George HUTCHINSON.
    No. 60663.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: State of Louisiana through Harry F. Connick, District Attorney applying for writ of certiorari.

Writ denied. No error in the trial court ruling. See State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977).


text:
    STATE of Louisiana v. Vester RANKIN.
    No. 60936.
    Supreme Court of Louisiana.
    Nov. 15, 1977.
   In re: Vester Rankin, applying for supervisory review.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Henry L. Yelverton, Judge of the 14th Judicial District Court for the Parish of Cameron, to transmit to the Supreme Court of Louisiana, on or before the 29th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. John CRITTLE.
    No. 61030.
    Supreme Court of Louisiana.
    Nov. 16, 1977.
   In re: John Crittle applying for writs of certiorari, review, prohibition and mandamus.

Writ denied. There is no adequate showing of reason to recuse the District Attorney at this time.


author: DIXON, J.,

text:
    STATE of Louisiana v. Freddie FRIDAY, Jr.
    No. 61036.
    Supreme Court of Louisiana.
    Nov. 17, 1977.
   In re: Freddie Friday, Jr., applying for supervisory review.

Writ denied. The showing made is insufficient to warrant relief in this Court.

DIXON, J.,

concurs in the denial. If defendant makes adequate representation in a motion for release on recognizance, and supporting evidence is adduced on the trial of the motion, defendant might be entitled to the relief sought.


text:
    STATE of Louisiana ex rel. William Robert AUSTIN v. Ossie BROWN, District Attorney.
    No. 59969.
    Supreme Court of Louisiana.
    Nov. 17, 1977.
   In re: Motion for Extension on Order.

Writ heretofore granted hereby revoked. Relator on June 1, 1977 by writ application requested that charges against him be dismissed because he had been denied his right to speedy trial on those charges. That writ was granted in part on July 1, 1977 and the district attorney was ordered to try relator on or before September 1,1977. That order was subsequently amended twice, once on August 29, 1977 to provide that defendant be tried on or before October 18, 1977, and once on October 18, 1977 to provide that defendant be tried on or before November 18, 1977.

The state now asks for an extension of the November 18, 1977 deadline for trial. In that regard, the state makes a showing that extradition papers were sent to the Governor of California on August 11, 1977; that the Governor of California issued a warrant of rendition on September 1, 1977; that California authorities notified Louisiana authorities on October 12, 1977 that Austin was ready to be returned to Louisiana; that two Louisiana deputies traveled to California on October 13, 1977 and were informed that Austin refused to return to Louisiana and had demanded a hearing; and that California authorities informed the State of Louisiana that Austin had been paroled from Folsom Prison, California and was still fighting extradition to Louisiana in state and federal courts.

In light of the state’s showing, all orders in this case (dated July 1, 1977, August 29, 1977, and October 18, 1977) are hereby revoked and set aside.

Should relator be aggrieved by this order, he is at liberty, in these proceedings or otherwise, to seek appropriate relief.


text:
    STATE of Louisiana v. Willie RAMEY.
    No. 61072.
    Supreme Court of Louisiana.
    Nov. 22, 1977.
   In re: Willie Ramey applying for remedial writ and stay order.

Stay order denied. The showing made does not warrant this court’s intervention.

DIXON and CALOGERO, JJ., would grant stay.


text:
    Glen E. MILLER v. EMPLOYERS MUTUAL LIABILITY INS. CO. OF WISCONSIN et al.
    No. 60903.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Employers Mutual Liability Ins. Co. of Wisconsin, et al. applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit Parish of Webster. 349 So.2d 1353.

Denied.

TATE, CALOGERO and DENNIS, JJ., dissent.


text:
    Glen E. MILLER v. EMPLOYERS MUTUAL LIABILITY INSURANCE CO. OF WISCONSIN et al.
    No. 60902.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   Glen E. Miller applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of Webster. 349 So.2d 1353.

Denied.

TATE, CALOGERO and DENNIS, JJ., dissent.


text:
    LIBERTY MUTUAL INS. CO. v. GRANT PARISH SHERIFF’S DEPARTMENT et al.
    No. 60969.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Liberty Mutual Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Grant. 350 So.2d 236.

Denied.

TATE, CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted.


text:
    Joan Ann Schexnayder GAUTREAU, etc., et al. v. Edmond DAVIS, etc., et al.
    No. 60899.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Joan Ann Schexnayder Gautreau, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. James. 350 So.2d 268.

Writ denied. The result is correct.

SANDERS, C. J., and TATE and CALO-GERO, JJ., are of the opinion the writ should be granted.


text:
    Leo Lucien LANGUIRAND v. Ulla Hansen LANGUIRAND.
    No. 60942.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Ulla Hansen Languirand applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Bossier. 350 So.2d 973.

Writ Denied.

DIXON, CALOGERO, and DENNIS, JJ., are of the opinion the writ should be granted.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Sawyer LEWIS.
    No. 60817.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Sawyer Lewis applying for writs of certiorari, mandamus and prohibition.

Writ denied. We cannot say the ruling was incorrect.

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

DENNIS, J.,

is of the opinion the writ should be granted. In view of the facts that the defendant was faced with a life sentence, without parole etc., which he subsequently received, and that the state’s case was based upon an apparent illegal seizure which the defendant’s attorney failed to move to suppress, the defendant was denied effective assistance of counsel.


text:
    STATE of Louisiana v. Gerald DICKERSON.
    No. 61016.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Gerald Dickerson applying for supervisory and/or remedial writs and for stay order.

Writ granted. Trial judge abused his discretion in refusing to grant a continuance of the preliminary examination. Order of trial judge set aside and case remanded for hearing on preliminary examination and further proceedings.

SANDERS, C. J., dissents from the granting of the writ.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Richard RAGLIN, Randal Paul Sheppard, Christopher Michael Holley.
    No. 60904.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Richard Raglin, Randal Paul Sheppard, Christopher Michael Holley applying for writs of certiorari, prohibition mandamus and stay order.

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


text:
    STATE of Louisiana v. Dalton PREJEAN.
    No. 60954.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: State of Louisiana applying for writ of certiorari.

Writ denied. The ruling is correct.


text:
    STATE of Louisiana v. Samuel P. LOVE, Jr.
    No. 60971.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Samuel P. Love, Jr. applying for writs of certiorari, prohibition and mandamus.

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


text:
    Joan Ann Schexnayder GAUTREAU, etc., et al. v. Edmond DAVIS, etc., et al.
    No. 61014.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Edmond Davis applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. James. 350 So.2d 268.

Writ denied. The result is correct.


text:
    Leanna Matthews BARNES et al. and Mary Ann Dunbar Wilkerson et al. v. LIBERTY MUTUAL INS. CO. et al. Obie Mae JEFFERSON et al. and Dorothy Mae Bowie Wilkerson et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 60996.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Obie Mae Jefferson, et al. and Dorothy Mae Bowie Wilkerson, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of LaSalle. 350 So.2d 294.

Writ denied.


text:
    JEFFERSON PARISH SCHOOL BOARD v. ROWLEY COMPANY, INC., and Louisiana Joint Underwriters of the Audubon Insurance Co.
    No. 60991.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Jefferson Parish School Board applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 350 So.2d 187.

Denied.


text:
    Leanna Matthews BARNES et al. and Mary Ann Dunbar Wilkerson et al. v. LIBERTY MUTUAL INSURANCE CO. et al. Obie Mae JEFFERSON et al. and Dorothy Mae Bowie Wilkerson et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 60989.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Leanna Matthews Barnes, et al. and Mary Ann Dunbar Wilkerson, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of LaSalle. 350 So.2d 288.

Writ denied.


text:
    Linda FENTON, widow of Ferrel J. Jacob v. GODCHAUX-HENDERSON SUGAR CO., INC. and Travelers Insurance Company.
    No. 60984.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Godchaux-Henderson Sugar Co., Inc. and Travelers Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 350 So.2d 274.

Writ denied.


text:
    Leanna Matthews BARNES et al. and Mary Ann Dunbar Wilkerson et al. v. LIBERTY MUTUAL INSURANCE CO. et al. Obie Mae JEFFERSON et al. and Dorothy Mae Bowie Wilkerson et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 60972.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: State of Louisiana, Dept, of Highways, applying for certiorari or writ of review, to the Court of Appeal, Third Circuit, Parish of LaSalle. 350 So.2d 288; 350 So.2d 294.

Writ denied.


text:
    Mrs. Claire Williamson SCHULZ v. Elaine M. LOUVIERE and Sandra Fust, divorced wife of/and Peter Williamson Schulz.
    No. 60968.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Mrs. Claire Williamson Schulz applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 350 So.2d 263.

Denied.


text:
    JEFFERSON PARISH SCHOOL BOARD v. ROWLEY CO., INC. and La. Joint Underwriters of the Audubon Insurance Co.
    No. 60963.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Rowley Co., Inc., applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 350 So.2d 187.

Denied.


text:
    Theophile O. MOSS, Jr. v. SECURITY NATIONAL INS. CO. and Karl A. Fortier, Jr.
    No. 60953.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   Karl A. Fortier, Jr. and Security National Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 350 So.2d 247.

Denied.

DENNIS, J., would grant the writ.


text:
    Wayne D. JOINER d/b/a Joiner Real Estate v. Lavada LOCKART.
    No. 60941.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Lavada Lockart applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 350 So.2d 199.

Denied.


text:
    Judy SAMANIEGO v. HORSELESS CARRIAGE, INC.
    No. 60912.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Horseless Carriage, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Ouachita. 350 So.2d 193.

Writ refused.


text:
    Floyd E. TUBBS v. LOUISIANA POWER AND LIGHT CO.
    No. 60901.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Floyd E. Tubbs applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Winn. 349 So.2d 994.

Writ denied.


text:
    Tommy Lee THOMPSON v. SOUTHERN CASUALTY INS. CO. and Clyde Sullivan, Inc.
    No. 60900.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Sou. Casualty Ins. Co. and Clyde Sullivan, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 349 So.2d 990.

Writ denied.


text:
    John S. BREWTON, Jr. v. L. L. BREWTON LUMBER CO., INC.
    No. 60911.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: L. L. Brewton Lumber Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Winn. 349 So.2d 1364.

Writ denied.


text:
    STATE of Louisiana ex rel. Huey H. REEVES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60761.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Huey H. Reeves applying for writ of habeas corpus and other remedial writs.

Application denied, for the reasons stated in the trial judge’s opinion.


text:
    STATE of Louisiana ex rel. James HUNTER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60754.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: James Hunter, applying for writ of habeas corpus.

Application denied. No error in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Almeca BARRETT v. Hon. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 60647.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Almeca Barrett applying for writ of mandamus.

Granted. It is ordered that the Department of Corrections and the Warden of St. Gabriel prison transfer Almeca Barrett to the custody of the Criminal Sheriff of Orleans Parish for incarceration pending her appeal and until her conviction becomes final.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Michael MANSO et al.
    No. 60814.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus.

Writ Denied: No error in the trial court’s ruling.

SANDERS, C. J., is of the opinion that a writ should be granted. See LSA-C.Cr.P. art. 294.

SUMMERS, J.,

dissents from the denial. In my view the presence of the defendant at a preliminary examination is required. La.Code Crim.Proc. art. 294 and Comments.


text:
    STATE of Louisiana v. Nathan WRIGHT.
    No. 60826.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Nathan Wright applying for writ of review.

Granted. Conviction set aside, best evidence of permit not produced. See State v. Batiste, 327 So.2d 420 (La.1976); La.R.S. 15:436.


text:
    Mildred Applebury STIRGUS v. David STIRGUS.
    No. 61041.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Civil District Court for the Parish of Orleans and the Judges thereof, applying for Supervisory Writs of Certiorari, Mandamus and Prohibition.

Writ denied. No error of law.

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

DENNIS, J.,

concurs in denial of the writ. Although the local rule appears to be inconsistent with L.C.C.P. Art. 5182 and 5183 which contemplate that the privilege of litigating without prior payment of costs be extended to litigants who are clearly entitled to it from his pleadings and supporting affidavits, our disapproval of the rule will not preclude the trial court from requiring a personal appearance of litigants when such affidavit, or additional supporting data such as questionaires, do not establish that the litigant is entitled to the privilege with reasonable clarity.


text:
    STATE of Louisiana v. Clyde FREEMAN.
    No. 60960.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
   In re: Clyde Freeman applying for supervisory writs.

Granted; Order of trial judge vacated; the trial judge is ordered to reconsider the matter in light of the alternatives available in C.Cr.P. 900, and to assign written reasons for the decision per Morrissey v. Brewer, 408 U.S. 471, at 489, 92 S.Ct. 2593, 33 L.Ed.2d 484.


author: GULOTTA, Judge. LEMMON, Judge,

text:
    Patricia COOK et al. v. AAA WORLDWIDE TRAVEL AGENCY, a Division of American Automobile Association of Louisiana and Dynimex-Pacifex Tours, Inc.
    No. 8329.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Dissenting Opinion Oct. 31, 1977.
    Rehearings Denied Dec. 13, 1977.
    Writ Granted Jan. 30, 1978.
    See also, La.App., 342 So.2d 713.
    Gerard J. Hansen, New Orleans, for plaintiffs-appellants.
    Frank J. Varela, New Orleans, for defendant-appellee, American Auto. Ass’n, Inc.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood, New Orleans, for defendant-appellee, Dynimex, Inc.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

The trial judge maintained defendants’ exception of prematurity to a breach of contract suit arising out of an overseas guided tour. Plaintiffs, members of the tour, allege that they purchased the services and accommodations as outlined in defendants’ tour brochure but were not provided with the arrangements as guaranteed. The basis for the court’s ruling is a provision in the same brochure which provides that any disputes or claims which may arise out of the agreement or relationship between the parties shall be settled by arbitration. Admittedly, plaintiffs did not request arbitration of the dispute.

It is plaintiffs’ contention on appeal that LSA-R.S. 9:4201 provides that an agreement to settle a dispute by arbitration must be in writing. According to plaintiffs, because no contract was executed in writing between the parties and signed by them, the requirements of LSA-R.S. 9:4201 have not been met and resort to arbitration is not mandatory in this case. Alternatively, plaintiffs contend that in the event that arbitration is required, defendants are es-topped from asserting this requirement because of their (defendants’) failure to request arbitration prior to the filing of the suit.

We reject these contentions. Accordingly, we affirm.

It is true, as pointed out by plaintiffs, that LSA-R.S. 9:4201 requires that an agreement to submit a dispute to arbitration be in writing. It is also true that no written, signed instrument containing the arbitration provision was entered into between the parties. The document containing the arbitration provision is a colorful brochure setting forth the nature and extent of the tour, the itinerary and the cost.

Although plaintiffs claim the arbitration provision violated LSA-R.S. 9:4201 because the provision was not in writing and was not made known to or specifically agreed upon by plaintiffs, the petition in which plaintiffs assert their claim relies on the representations made in the same brochure containing the arbitration provision. In paragraph V. of the original petition, plaintiffs allege that they purchased the tour as outlined in the brochure. In paragraph VI. of plaintiffs’ petition, they allege that defendants breached their contract by 1) not allowing the leisure time as indicated by the brochure; 2) not providing the informative tour as guaranteed in the brochure; 3) not including certain tours as guaranteed in the brochure; and, 4) not placing plaintiffs in luxury hotels as indicated in the brochure. When these allegations are considered, we find difficulty in placing any validity in plaintiffs’ assertion that the arbitration provision in the brochure is not binding but that the guarantees of services and accommodations set forth in the same brochure provide the basis for plaintiffs’ claim for breach of contract.

Although plaintiffs claim, in brief and in argument, that the arbitration agreement was not in writing, the primary thrust of their argument is that no signed agreement containing the arbitration provision was entered into between the parties. It is clear from a reading of LSA-R.S. 9:4201 et seq. that no requirement is made that the written agreement be signed by the parties. Presumably, absent a signature or a signing of an agreement, the effect or validity of the agreement may be shown by the actions and conduct of the parties.

We have not been cited nor have we found any Louisiana jurisprudence on the question whether the arbitration provision is required to be signed by the parties. Reference to other authorities, however, indicates that no signature is necessary under statutes similar to our own. Defendants cite 5 Am.Jur.2d, Arbitration and Award § 13, in support of their contention that arbitration agreements which are required to be in writing are nevertheless valid though not signed by the parties. See also Domke on Commercial Arbitration, § 6.01 (1968). Defendants also rely on U.S. District Court decisions dealing with Federal statutes similar to our own and holding that no signature to the written clause is necessary.

We also find persuasive defendants’ argument that the arbitration agreement in the brochure is similar to that in the uninsured motorist coverage of an automobile liability insurance policy which is not signed by the insured, but which has been upheld in other jurisdictions.

Though we find no Louisiana authority either supporting or rejecting the necessity that arbitration agreements be signed by the parties, our courts have expressed the general view that, as a matter of public policy, arbitration is favored in the law. See Wright v. Round The Corner Restaurants of Louisiana, Inc., 252 So.2d 341 (La.App. 4th Cir. 1971); Cajun Electric Power Cooperative, Inc. v. Louisiana Power and Light Company, 324 So.2d 475 (La.App. 4th Cir. 1975).

A brochure, not unlike a newspaper advertisement, is in the nature of an offer. See Johnson v. Capital City Ford Company, 85 So.2d 75 (La.App. 1st Cir. 1955); Willis v. Allied Insulation Company, 174 So.2d 858 (La.App. 1st Cir. 1965). Though courts in other states have regarded certain newspaper advertisements as invitations for offers, we are inclined to the belief, based on the Johnson and Willis decisions, that the detailed travel brochure before us is an offer to deliver services under conditions set forth in the brochure. Upon payment of the stated price of the tour, a contract came into existence between the parties. The terms of that contract are set forth in the printed brochure which, in addition to a colorful description of the itinerary, contains a “General Conditions” section. In that section, particular conditions concerning such subjects as tour prices, reservations and deposits are set forth in addition to the arbitration clause. The parties entered into a contract subject to these conditions. Though no signed agreement existed between the parties, plaintiffs’ action in paying the tour price and embarking on the trip indicates an intent to be bound by the arbitration provision. Under the circumstances, we conclude that the arbitration provision contained in the brochure is binding on the parties.

Plaintiffs assert, however, even if the arbitration provision is a part of the agreement between the parties, it is not enforceable because the designation of the State of Minnesota as the place for arbitration is unreasonable. We do not agree.

Defendant Dynimex is a Minnesota corporation which offers tours to travelers from all over the country. There is no evidence in the record to indicate that all participants in the tour were Louisiana residents. Conceivably, because related claims arising from the same tour, but involving citizens of many states might arise, it is not unreasonable that all disputes be resolved by an arbitrator in a single location. See Wright v. Round The Corner Restaurants of Louisiana, Inc., supra. We distinguish the facts of our case from those in Calzavara v. Biehl & Company, 181 So.2d 809 (La.App. 4th Cir. 1966). The cited case involved a dispute between two Louisiana residents. We held that a clause in the contract requiring that any legal action be brought in Venice, Italy was unreasonable. The circumstances of our case are clearly different.

We reject plaintiffs’ contention that defendants are estopped from demanding arbitration or asserting the arbitration provision as a defense to the suit. LSA-R.S. 9:4202, dealing with a suit brought upon an issue referable tó arbitration, provides for a stay of trial until arbitration is complete, so long as “the applicant for the stay is not in default in proceeding with the arbitration”. It is clear from a reading of the statute that it contemplates estoppel from asserting an exception of prematurity (based on an arbitration provision) to a suit (on an issue referable to arbitration) where plaintiff has requested arbitration and defendant-exceptor has refused to accede to the request. Though plaintiffs argue that defendants have been dilatory in asking that arbitration commence or in manifesting a desire to discuss a time and place for arbitration, plaintiffs themselves have not at any time requested arbitration. Defendants, therefore, cannot be considered as having refused to arbitrate or as being “in default in proceeding with the arbitration”. Under the circumstances, we conclude that defendants’ failure to request arbitration does not constitute a waiver of their right to assert the exception of prematurity based on the arbitration provision.

Accordingly, the judgment is affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissenting.

Defendants are asking this court to enforce the provisions of a contract, drawn by them, in which they attempt to tell the other contracting party that if he is dissatisfied with the promised performance, he can complain only (1) by arbitration and (2) in Minnesota. Pretermitting the question of arbitration, I would hold that these defendants, who came into Louisiana and solicited business from Louisiana residents by offering to perform certain services in exchange for payment, cannot reasonably require the Louisiana residents to bring disputes over performance of the $1,527.00 contract only in Minnesota. The contractual provision is not only unreasonable, but also effectively deprives the Louisiana residents of any reasonable opportunity for a hearing on the dispute in violation of the public policy of Louisiana embodied in La. Const. 1974, Art. 1, § 22, which states:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights”.

Generally, the validity of a contractual provision, giving exclusive jurisdiction to certain courts over disputes which may arise, depends upon the reasonableness of the provision in the light of all the circumstances of this case. In Calzavara v. Biehl & Co., supra, we refused to enforce a provision in a contract of passage, entered into in New Orleans between two Louisiana residents, because the provision attempting to make Venice, Italy the exclusive place for bringing actions was unreasonable. We also noted that enforcement of the provision “would be equivalent to holding that he cannot bring the action against the defendant anywhere”.

In Wright v. Round the Corner Restaurant of La., Inc., supra, the parties entered into an employment agreement in Colorado, where the shareholders of the corporation resided, although the employment services were to be rendered in Louisiana. We held reasonable a provision requiring settlement of disputes by arbitration in Colorado, noting particularly that a substantial part of the dispute related to an option to acquire 20% of the corporate stock from the Colorado residents.

In the present case one defendant, a Minnesota corporation, mailed the particular brochures to the travel agent, a Louisiana corporation, who advertised the tour in newspapers and periodicals here and negotiated the sale of the tour to the public. The Minnesota corporation received the payment (minus the fee withheld by the Louisiana corporation) and conducted the tour which commenced in Seattle and terminated in Honolulu. Thus, the contract of sale was struck in Louisiana between plaintiffs (Louisiana residents) and one defendant (a Louisiana corporation) that acted as agent on a commission basis for the other defendant (a Minnesota corporation). The record shows no contacts whatsoever with the state of Minnesota in the formation of this contract, except for the mailing of the brochure containing the limiting provision.

In my opinion there is no reasonable basis to require the Louisiana residents to go to Minnesota to obtain relief from their complaints about the performance of the contract, and requiring them to do so effectively deprives them of a reasonable remedy.

      . The brochure, which sets forth the nature and extent of the tour, contains the following provision:
      “Any disputes or claims which may arise as per our agreement or relationship, or with respect to any breach thereof on the part of operator or agent or participant, shall be settled by arbitration in the State of Minnesota.”

      . LSA-R.S. 9:4201 provides:
      § 4201. Validity of arbitration agreements “A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

      . Paragraph V. of plaintiffs’ petition reads as follows:
      “V.
      “Petitioners allege that the tour they purchased as outlined in the brochure issued by DYN1MEX-PACIFEX TOURS, INC. and presented by its agent, AAA WORLDWIDE TRAVEL AGENCY, a division of AMERICAN AUTOMOBILE ASSOCIATION OF LOUISIANA, was not the tour that they actually received when they arrived in Tokyo, Japan and therefore your petitioners allege breach of contract on the part of AAA WORLDWIDE TRAVEL AGENCY, a division of AMERICAN AUTOMOBILE ASSOCIATION OF LOUISIANA and DYNIMEX-PACIFEX TOURS, INC."

      . See 9 U.S.C.A. Secs. 2 and 3; Ocean Industries, Inc. v. Soros Associates International, Inc., 328 F.Supp. 944 (S.D.N.Y.1971); A.B.C., Inc. v. Am. Fed. of Tel. and Radio Artists, 412 F.Supp. 1077 (S.D.N.Y.1976).

      . See Miller v. Allstate Insurance Company, 238 F.Supp. 565 (W.D.Penn.1965); Bohlmann v. Allstate Insurance Company, 171 So.2d 23 (Fla.App. 1st Dist. 1965); 17 C.J.S. Contracts § 59 and 17 C.J.S. Contracts § 62.

      . See Litvinoff, “Offer and Acceptance in Louisiana Law: A Comparative Analysis: Part I— Offer”, 28 La.L.Rev. 1, 4 n. 21 (1968) and the common law jurisprudence cited therein.

      . LSA-R.S. 9:4202 provides:
      § 4202. Stay of proceedings brought in violation of arbitration agreement
      “If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.”

      . See 56 A.L.R.2d 295, § 6 (1957)


author: SCHOTT, Judge.

text:
    Eunice BURNS, wife of and Edward Burns v. N. E. I. MANAGEMENT SERVICES, INC. and Home Insurance Co.
    No. 8713.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Dec. 13, 1977.

      Roger B. Jacobs, New Orleans, for plaintiffs-appellees.
    Murphy & Simon, James C. Murphy, Jr., New Orleans, for defendants-appellants.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment awarding plaintiff, Eunice Burns, workmen’s compensation benefits of $61.11 per week for 100 weeks with statutory penalties and attorney’s fees. Plaintiff has answered the appeal seeking benefits for total and permanent disability.

According to plaintiff, while she was engaged in her occupation of cleaning up defendant’s office on April 11, 1975, using a small knife to remove paint or gum from a plexiglass piece over a carpeted floor she somehow slipped and stabbed herself in the thigh. She was alone on the floor at the time and immediately went to the floor below where she got assistance from a coworker and was eventually brought to the hospital for emergency treatment.

The compensation insurer of her employer paid compensation for the period of April 20 through April 30, paid the fee for the physician who initially treated her, but refused to pay the hospital bill in the amount of $806.70. In making his award, the trial court made the following findings:

“The Court is satisfied from the evidence adduced during the trial of this cause that:
“Plaintiff did injure herself while working in the course and scope of her employment.
“That the wound in her thigh was not self-inflicted, but was the result of an accident while she was performing the work assigned to her, and that the claim is therefore compensable.
“That she does have some residual affects from the accident which has aggravated a pre-existing condition, hence permanently impairing the usefulness of a physical function.
“That plaintiff is not therefore totally and permanently disabled.
“That it was arbitrary and capricious on defendant-insurer’s part to fail to pay compensation to plaintiff during plaintiff’s inability to work, and especially to refuse to pay the medical costs of plaintiff’s treatment for the injury suffered.”

Defendants have specified error on the part of the trial court in concluding that, 1) plaintiff sustained a compensable accident, 2) her injury aggravated a pre-existing condition causing the impairment of a physical function and entitling her to an award, and 3) the actions of the defendants were arbitrary and capricious so as to warrant an award of penalties and attorney’s fees.

We have no difficulty in disposing of defendants’ first specification of error. While plaintiff’s testimony was rather vague as to how this accident happened there is no evidence to suggest that the injury was inflicted by anyone else and there is no reasonable basis to suppose that it was intentionally self-inflicted. Her own testimony that it was an accidental injury together with the testimony of her co-worker to whom she ran for assistance are sufficient to support the conclusion of the trial court in this respect.

In order to consider the second specification of error, it is necessary to consider in some detail the testimony of plaintiff and the various physicians who examined her after the accident. When she was admitted to the hospital she was treated by Dr. Michael J. Mullin. He testified as follows: He found a stab wound about two e.m. in length with a moderate size hemato-ma surrounding the wound. There was active bleeding and the hematoma was expanding. Because of the location of the wound right over the femoral artery exploration of the wound was indicated. On the following date local anesthesia was administered and the stab wound was excised in an incision approximately five to six c.m. long. The saphenous vein had been lacerated and a large amount of hematoma infiltrated the muscle. There was no evidence of injury to the femoral artery itself. The wound was irrigated and was closed with sutures. She was discharged from the hospital on April 15 with no complications noted at that time. He saw plaintiff on April 23 when the sutures were removed and on May 5 when he discharged her. He felt that she had a substantial recovery from her injury and was able to return to work without residual except for decreased sensation in her thigh.

Plaintiff testified that she tried to return to work for defendant a few months later but they would not take her back, and she then took a job as a janitor at a hotel, where she worked for three or four months. She said that her leg bothered her to the extent that she was unable to hold this job, and that stooping and bending her leg caused her knee to swell. She testified that before this accident she never had any difficulty with her leg and at the time of the trial on June 17, 1976, she was still unable to perform the type of work she had been doing prior to the accident without difficulty-

On June 2, 1975, plaintiff was examined by Dr. Morris W. Levy, a surgeon. He testified as follows: He found a decrease of sensation to pin prick on the medial aspect of the right thigh and knee but the knee was stable otherwise. She had some weakness in the leg and could not straighten it out with full motion, so he started her on exercises to increase the strength of the leg. On July 24 he found that she could flex her leg quite well but that she still had anesthesia along the right leg, that is, there was no feeling. However, she could go back to work but nothing could be done at that time for the anesthesia. He examined her for a third time on September 5,1975, when she complained that her knee “gives way.” On examination he found that the knee was swollen and tender along the medial aspect of the knee and right thigh. He prescribed an anti-inflammatory drug and recommended that she continue with exercising and working. He next examined her on September 18 when she said she was somewhat better and the swelling had decreased. On October 2 he saw her and although she was complaining that her knee and leg hurt her on occasions he could not find any reason for her complaints. On March 12, 1976, she returned to him complaining of limited motion in her leg as well as shooting pains. The pin prick test revealed that feeling was returning to her leg and he concluded that she was suffering from neuritis, which is an inflammation of the nerve fibers resulting from the two ends of the nerve growing together. He stated that pain resulted from motion and stretching of the nerves. He explained the swelling of her knee to be the result of the rehabilitation of the muscles, that is, as they are stretched from activity the entire muscle system became inflamed. Dr. Levy explained that the nerves regenerated themselves from the date of her accident and would take from 12 to 15 months for complete growth to occur, and that in the process of working she might irritate the nerves causing pain until complete regeneration of the nerves occurred. During the course of his treatment Dr. Levy had prescribed boot exercises for plaintiff, which were taken 33 times between June 2 and July 24, 1975. These consisted of her straightening the leg while wearing a boot.

On July 17, 1975, plaintiff was seen by Dr. Russell Grunsten, an orthopedic surgeon, and on the basis of his examination he concluded that plaintiff’s laceration had damaged the saphenous nerve with resulting numbness corresponding to the distribution of this nerve below the knee area. X-ray studies revealed osteoarthritic changes in her knee, but he felt that she could resume her normal activities. She had permanent damage to the saphenous nerve which he rated as a 5% permanent partial disability, He next examined her on October 28, 1975, and still found numbness corresponding to the distribution of the saphenous nerve. He also felt that she was experiencing symptoms of osteoarthritic origin in the knee in addition to the symptoms related to the nerve damage. On November 25 Dr. Grunsten again saw plaintiff and he found moderately advanced arthritic change in the right knee which appeared to him to be of long standing. He felt that the functioning status of the leg had returned to its pre-injury condition and that she was left with the 5% permanent partial disability in view of the damage to the sensory nerve components. He did not feel that this would interfere with her duties as a janitor although he acknowledged that this was an uncomfortable situation for her. He did not see any connection between the arthritis and this numbness in her leg, but he felt that the boot exercises could have caused a temporary flareup of the arthritis. In response to a question under cross examination as to whether plaintiffs nerve problem was a functional disability, Dr. Grun-sten stated: “It’s not functional in the sense it interferes with the range of motion or power but, only in the sense it is an uncomfortable feeling. There is not the normal anatomy in the leg that existed prior.”

In answer to a question by the trial judge as to the severity of the pain caused by this nerve situation the doctor stated that it was “more a pain of annoyance, irritating, rather than incapacitating.”

Based on the foregoing testimony there was insufficient evidence to support plaintiff’s theory that she is totally and permanently disabled as a result of this accident. There is no proof that a pre-existing arthritic condition was aggravated. On the other hand, the testimony with respect to the damage to plaintiff’s nerve system does support the trial judge’s finding that the usefulness of the physical function of her leg was impaired, entitling plaintiff to recovery under the provisions of LSA-R.S. 23:1221(4)(p).

The final error specified by defendants is the award of penalties and attorney’s fees. From the reasons for judgment given by the trial judge, he was greatly influenced by the refusal of defendants to pay the medical costs of plaintiff. The evidence shows that plaintiff was paid compensation initially for ten days and Dr. Mul-lin’s bill was paid. Yet, defendants never paid the hospital bill incurred by plaintiff in the amount of $806.70. Defendants’ adjuster testified that his investigation brought up the question of whether the injury was compensable or whether it was self-inflicted. Yet he admitted that he had no evidence to support an intentionally self-inflicted wound. From the record we can see no reasonable basis whatsoever for defendants even to suspect that this injury was self-inflicted and it was surely arbitrary and unreasonable for them not to have paid this hospital bill. Furthermore, the evidence shows that defendants were satisfied to rely fully and finally on the opinion of Dr. Mullin, who last saw plaintiff on May 5, despite the fact that plaintiff was suffering from some residuals from this accident necessitating active treatment by Dr. Levy. In view of his testimony as well as Dr. Grunsten’s, plaintiff was still having residual discomfort from this accident throughout the period of time when she was examined by these physicians. There was no basis for defendants to decline payment of their bills.

Defendants’ attitude with respect to the bills generally characterized their* treatment of plaintiff’s entire claim. Until May 21, 1976, less than a month before the trial they had no medical examination performed on plaintiff. At that time she was examined by Dr. Eugene Dabezies. He found the scar on the medial aspect of the thigh and an area of dysesthesia, or decreased sensation, in the medial aspect of the knee probably resulting from the laceration severing one of the small branches of the saphenous nerve. He found the osteoar-thritic process which he felt was unrelated to the accident and concluded that there was no functional impairment of the usage of the leg. He explained that there had been no injury to a nerve which was responsible for muscle function and the sensory deficit was not in an important area. He explained that dysesthesia is a somewhat uncomfortable sensation which would decrease over a period of time.

Thus, defendants’ own expert agreed essentially with Drs. Levy and Grunsten to the effect that there was some discomfort due to this nerve deficit which led her to seek further medical treatment after she was discharged by Dr. Mullin, and yet defendants steadfastly and stubbornly declined payment of any further medical expenses. Under these circumstances we cannot say that the trial judge erred in finding that defendants’ overall conduct was arbitrary and unreasonable.

Plaintiff has asked that we increase her attorney’s fee, but we have concluded that the trial judge’s award of $2,000 is adequate under all of the circumstances. The judgment appealed from is affirmed.

AFFIRMED.