author:
      DIXON, Justice.
      TATE, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Harold C. KELT, Jr.
    No. 61628.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.
    Evangeline M. Vavrick, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Harold C. Kelt, Jr. was charged by bill of information with one count of theft and one count of receiving stolen things. He was tried by jury and found to be not guilty of the theft but guilty of receiving stolen things. The trial judge sentenced Kelt to serve one year in prison and to pay a fine of $350 plus $60 court costs. Execution of the sentence of imprisonment was suspended and defendant was placed under eighteen months active probation. On appeal defendant advances three arguments on assignments of error.

Defendant Kelt, among other business enterprises, operates the H & Q Oyster Bar on North Claiborne Avenue in New Orleans. In May of 1975 two of the bar/restaurant’s patrons, Joseph County and Leonard Jourdan, offered to sell defendant fifty foot rolls of chain link fencing. According to defendant’s testimony at trial, County and Jourdan explained that they were in the fence business and that they had several rolls left over from one of their jobs. Kelt purchased four fifty foot rolls at $15 each. The rolls were delivered to the backyard of the H & Q in an unmarked blue station wagon.

Joseph A. Oster, a New Orleans private investigator, learned of the fence sale. Oster contacted a former client, Fred A. Van-derberg, the president of the Quaid Fence Company, and told him that he suspected that the fence company was losing fence rolls through theft. Vanderberg checked his inventory and finding significant shortages, hired Oster to investigate. Through his investigation, Oster learned that Joseph County and Leonard Jourdan were stealing rolls of fence from the Quaid fence lot. The investigation led to the arrest of County, Jourdan and the defendant Kelt.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying a motion for new trial based in part on the allegation that State witnesses violated the sequestration order.

After both the State and defense had completed closing arguments and the jury had been retired for deliberation, defense counsel moved for a mistrial on grounds that the witness sequestration order had been violated. From the testimony taken for the motion it appears that the alleged violation took place in an assistant district attorney’s office located directly behind the courtroom. A vent passes between the courtroom and the office and though a desk sits in front of the vent, a space of approximately three inches above the desk is unobstructed. Several of the State witnesses testified that they were in the office at various times during the trial and that while it was possible to overhear part of the trial proceedings through the vent, they did not try to do so and that in fact they did not listen to the court proceedings. The wife of the defendant testified that she was seated in the hall outside the courtroom at one point during the trial and that she overheard various witnesses laugh about going into the office to listen to the trial.

C.Cr.P. 764 provides:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

In State v. Johnson, 343 So.2d 155, 163 (La.1977), we stated:

“The purpose of the article is to prevent the witnesses being influenced by prior testimony and to strengthen the role of cross-examination in developing the facts. Even when the rule of sequestration has been violated, if its purpose has not been thwarted the trial judge may, in his discretion, refuse to disqualify the errant witness or to declare a mistrial. . . . ”

We do not find error in denying the motion for mistrial or in denying the motion for new trial on these grounds. The testimony at the hearing did not prove a violation of the order; further, even if there had been a violation, the testimony did not indicate that the defendant was prejudiced. Accordingly, the assignment is without merit.

Assignment of Error No. 2

After his conviction defendant filed a motion for new trial based on newly discovered evidence. This assignment is based on the denial of that motion.

The new evidence discovered by defense counsel after trial involved prior civil suits filed against a key prosecution witness, Joseph Oster, which may have been relevant to impeach his credibility. At trial during defense cross-examination, Oster stated that he had been sued only three times before in connection with his business and he intimated that those suits dealt only with contract disputes. The defense counsel’s examination of court records after trial, however, revealed that Oster had been named defendant in at least two other actions. John Friedel, the comptroller of one of the plaintiff companies, testified at the motion for new trial that several years earlier Oster had contacted him and said that he had information concerning a series of company thefts and would begin an investigation if the company paid him $750. Frie-del stated that inventories taken after Oster was paid indicated that no thefts had occurred; hence the civil suit was filed for the recovery of the $750 fee. The defendant contends that the prior suits indicate that Oster conducted a confidence scheme by which he would solicit business through false reports of theft and that if this information had been placed before the jury, Oster would have been totally discredited and the defendant would have been acquitted.

C.Cr.P. 851(3) provides:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.”

Because the trial judge is in a better position to evaluate the hypothetical effect of newly discovered evidence on the verdict, the matter is relegated in large measure to his discretion, and, absent a showing that the discretion was abused, this court will not disturb his ruling. State v. Boyd, 359 So.2d 931 (La.1978); State v. Provost, 352 So.2d 661 (La.1977). No such showing has been made in the present case. While it is true that the evidence may have caused the jury to place less weight on the testimony of Oster, it was not unreasonable for the trial judge to conclude that its introduction would not have affected the outcome because of the other evidence against defendant.

This assignment is without merit.

Assignment of Error No. 3

The defendant contends that the verdict cannot be supported by the evidence introduced at trial.

This assignment is without merit. The State introduced the testimony of several witnesses, including that of Leonard Jourdan, the man who admitted stealing rolls of wire and selling them to the defendant. Defendant himself admitted buying the rolls of wire. The circumstances of the purchase as shown by the testimony were such as to support a finding that the defendant knew or should have known that the wire was stolen. We cannot say that as a matter of law the State failed to prove its case.

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

TATE, Justice,

concurring.

I concur because I am unable to disagree with the majority opinion that, technically, no error of law occurred which requires reversal.

Nevertheless, the record in this case readily permits a view that a miscarriage of’ justice has taken place: that the defendant, a respectable person of no law-violation background, has been convicted of knowingly buying stolen fencing on the basis of evidence confected by a private investigator of uncertain reliability (who made certain misstatements and concealed in his trial testimony matters which reflected adversely on his credibility and motive in this instant case).

I am not yet prepared to hold that the trial court abused its discretion by not granting a new trial. Nevertheless, my personal view is that the present is one of those rare instances to which La.C.Cr.P. art. 851(5) is applicable: “The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”

TATE, J., assigns additional concurring reasons.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent, believing that denial of the new trial sought by defendant was an abuse of the trial court’s discretion under the circumstances. The record in this case, revealing the facts to which my brother Tate briefly alludes in his concurring opinion, exhibits the need for retrial in the interest of justice.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth B. KAERCHER. STATE of Louisiana v. Thomas W. TIGHE.
    Nos. 61674, 61675.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Richard V. Burnes, C. F. Gravel, Jr., Gravel, Roy & Burnes, Alexandria, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendants were charged by bills of information with possession of marijuana with intent to distribute, a violation of La. R.S. 40:966. A pre-trial motion to suppress the 12,600 pounds of marijuana, urging that the seizure was warrantless, without consent and without the requisite exigent circumstances, was denied after a lengthy hearing. The trial court permitted the defendants to enter guilty pleas to the crime charged with reservation of the right to appeal the ruling on the motion to suppress, a procedure approved in State v. Crosby, 338 So.2d 584 (La.1976). Upon their pleas of guilty, each defendant was sentenced to serve ten years at hard labor and pay a fine of $15,000.

The trial judge’s per curiam filed in the record notes that during the early morning hours of April 23, 1977 a major fire which destroyed the Safari Club in Galliano, La-fourche Parish, was in progress. When firefighting efforts commenced, Louisiana Highway No. 1, running in front of the club, was blocked. At about 3:55 A.M., most of the fire was out, but hot spots in the rubble were causing flare-ups and firefighters were responding to the problem. There were at least three fire engines still at the scene, pumping water through hoses placed in Bayou Lafourche across Highway 1 for fighting the sporadic flare-ups. Partial road blocks on Highway 1 on either side of the Safari Club were still in effect and fire and police units with emergency lights activated were at the scene. Large numbers of people, some walking on or near the roadway, were still present. Major Doucet of the Lafourche Sheriff’s Office observed a blue 1974 GMC truck drive through this congested area over fire hoses at approximately 45 miles per hour, the speed posted for travel in the area under normal circumstances. Doucet instructed Deputy Cant-relle to pursue the truck and Cantrelle overtook the vehicle at a point about one mile north of the fire scene. The truck pulled over on the shoulder, then Deputy Cantrelle parked behind the truck and emerged from his unit. As Cantrelle approached the truck the driver also exited his vehicle and walked to the truck’s rear to meet the deputy. Cantrelle asked the driver to produce his license and the driver complied. Cantrelle thereby learned that the driver was Thomas Tighe of Minnesota. The deputy advised Tighe that he was under arrest. At this time Cantrelle observed marijuana gleanings on the back of the truck and requested permission to open the truck. Such permission was denied. Deputy Cantrelle. directed Tighe to drive the truck to the Galliano annex of the Sheriff’s Office, where both Tighe and his passenger, Kaercher, were apprised that they were under arrest and given Miranda warnings. After escorting the defendants into the annex, Cantrelle, accompanied by Major Dou-cet and Detective Robert Boughamer, again viewed the rear of the truck; marijuana gleanings were clearly observable on the truck’s tailgate and partially sticking out from under the rear door. A strong marijuana odor was detected. Boughamer took samples of the gleanings from the tailgate, subjected them to field testing and obtained positive results. Cantrelle had commenced preparation of the affidavit which he planned to submit in support of his application for a search warrant for the truck. After the field testing Boughamer, accompanied by Doucet and Deputy Lirette, returned to the rear of the truck and opened the doors, observing numerous bales of marijuana within. When Lirette returned to the annex office, he assisted Cantrelle in completing the preparation of the affidavit. Cantrelle obtained a warrant to search the truck and the search was conducted at approximately 7:00 A.M. Based on the 12,600 pounds of marijuana found in the truck, defendants were advised that they were charged with possession of marijuana with intent to distribute.

The defendants attack the search conducted pursuant to the warrant, urging that the warrant was invalidly obtained and claiming that the affidavit fails to set forth the requisite probable cause upon which the warrant’s issuance must be based. We first examine Cantrelle’s affidavit which recited the following facts to determine whether it sets forth the articulated probable cause necessary to support the search warrant.

At approximately 3:55 A.M. on April 23, 1977, while Cantrelle was working traffic at the Club Safari fire site he saw the vehicle for which permission to search was sought travelling in excess of 40 M.P.H. through the congested area. As it approached the congestion, it appeared to maintain its speed rather than slow down; it was noted that the truck maintained its rate of speed while travelling through the area. Cant-relle pursued the truck and overtook it after having travelled a distance of about a mile. The officer approached the truck and asked that the driver alight and come to the rear of the truck. The driver complied and Cantrelle asked him for his driver’s license; while the driver sought to produce the license, Cantrelle, glancing at the rear of the truck, observed what appeared to be green vegetable matter on the truck’s tailgate. Cantrelle did not remark upon his observation, but merely accepted the license produced, which revealed that the driver was Tighe, a resident of Minnesota. Cant-relle informed Tighe that he was under arrest for “his offense as he proceeded through the contested area” and instructed him to proceed to the annex. At the annex Cantrelle returned to the rear of the truck and noticed more closely the green vegetable matter on the tailgate, some of which he retrieved. Cantrelle then commenced preparation of the affidavit and Tighe was informed that a warrant was being sought. The affidavit notes that the vehicle was secured in front of the annex in plain view, pending the issuance of the search warrant and exploration pursuant thereto.

Appellants protest that the affidavit’s repeated references to observation of “green vegetable matter” and “green matter” fall short of a claim that marijuana was viewed. They urge that even if the affidavit had noted observation of “what appeared to be marijuana,” a mere suspicion would thereby have been related, not the concrete facts which the law requires in an affidavit in support of a warrant application.

It is well established in the jurisprudence that affidavits for search warrants are tested and interpreted in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Boyd, 359 So.2d 931 (La.1978); State v. Segers, 355 So.2d 238 (La.1978); on rehearing, 357 So.2d 1 (La.1978). Construing the instant affidavit in a realistic manner, we conclude that it did set forth probable cause to search. We agree with the State that the term, “green vegetable matter,” is synonymous with the word, “marijuana,” when it is used in law enforcement and judicial proceedings. Moreover, the defense misapprehends the requirement of Article 162 of the Code of Criminal Procedure that an affidavit in support of a search warrant application set forth facts when it construes that requirement to mean that the substance viewed must have been conclusively identified or scientifically proven to be a controlled dangerous substance. The fact that the search warrant issued authorized exploration for one item only, marijuana, bolsters our conclusion that when sighting of green vegetable matter is reported by a law enforcement official, the “green vegetable matter” is understood to be suspected marijuana.

The representations set forth in the affidavit adequately supply probable cause upon which to base the issuance of a search warrant for the truck defendant Tighe was driving. In State v. Segers, supra, we noted that a commonsense reading of the affidavit revealed that the issuing magistrate was told of the affiants’ belief that marijuana was hidden in the described vehicles, such belief being based on the observation of marijuana gleanings on the outside of the vehicles and the detection of the odor of marijuana in the area. We held that those facts sufficiently supported a finding of probable cause.

As in the Segers case, the affiant was a law enforcement official. Realistically, when an officer seeks a search warrant based on his sighting of green vegetable matter and the magistrate construes the representations as a request to search for marijuana, the settled principle requiring that probable cause determinations be paid great deference, which mandates that resolution of doubtful cases be largely determined by the preference accorded warrants, dictates our judicial approval of the affidavit’s sufficiency. State v. Anderson, 357 So.2d 547 (La.1978).

The appellants’ claim of the insufficiency of the affidavit is without merit.

Appellants’ argument that the search warrant was invalidly obtained is based on the claim that failure to apprise (in the affidavit) of the earlier, warrantless search constituted an unjustified and reprehensible misrepresentation by omission which requires disapproval of the warrant. The issue of affiant’s knowledge vel non of the prior search is urged to be irrelevant; because Deputy Lirette, who was present at the warrantless search, assisted Deputy Cantrelle in the preparation of his affidavit by typing it, intentional and purposeful deception of the judge was wrought by means of State action.

Insofar as acquisition of the warrant was concerned, only the affiant, Deputy Cant-relle, contacted and communicated with the issuing judge. There is no representation that Cantrelle knew that a warrantless search had been conducted by fellow officers, and a review of the entire record fails to establish that there was such knowledge on Cantrelle’s part. Deputy Lirette testified that he did not advise Cantrelle that the truck had been opened; Cantrelle himself stated that he only learned that the truck had been opened without a warrant after he himself had secured the search warrant.

The issue which the Court must determine is whether the search warrant was invalidly procured. The record fails to establish any deception, fraud or misrepresentation on the part of the affiant, whose representations formed the basis for the warrant’s issuance. We have determined that the contents of the affidavit were sufficient to support a finding of probable cause. While the actions of fellow officers in conducting a warrantless search might be viewed as reprehensible if undertaken under circumstances where there was no legal justification for their intrusion, that issue has no bearing on our determination that the affiant here validly obtained a warrant to conduct a search of the truck.

All of the defendants’ claims relating to the search warrant lack reversible merit. The trial court did not err in denying defendants’ motion to suppress.

Having determined the legality of the search conducted pursuant to the warrant, we need not consider defendants’ arguments that the trial court erred in determining that the warrantless search conducted by Boughamer, Doucet and Lirette was valid, due to the existence of exigent circumstances at the time Deputy Cantrelle had both truck and driver detained on the shoulder of Highway 1.

Decree

For the foregoing reasons, the defendants’ conviction and sentences are affirmed.

AFFIRMED.

DENNIS, J., concurs.

      . Lirette’s assistance consisted of typing Cant-relle’s affidavit and aiding the less experienced officer with wording of the affidavit. Lirette made no suggestions with regard to the affidavit’s substance.


author: DENNIS, Justice. MARCUS, Justice

text:
    Mrs. Mona SEWELL v. ARGONAUT SOUTHWEST INSURANCE CO.
    No. 61668.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Fred S. Gahagan, Gahagan & Gahagan, Natchitoches, for plaintiff-relator.
    Chatham H. Reed, Simon, Fitzgerald, Cooke & Reed, Shreveport, for defendant-applicant.
   DENNIS, Justice.

The issue presented in this workmen’s compensation case is whether a judgment which silently passes over an employee’s demand for medical expenses precludes re-litigation of that issue if no evidence was offered as to the necessity or cost of the expenses.

In a previous workmen’s compensation suit the employee was awarded compensation but the judgment was silent as to medical expenses. The employee neglected to offer specific evidence in support of her prayer relating to services necessitated by the accident, although it was obvious from the record that extensive treatment had been required. The employee did not answer the insurer’s appeal, and the district court judgment was affirmed. Sewell v. Argonaut Southwest Insurance Company, 338 So.2d 1208 (La.App. 3d Cir. 1976).

In the instant case, the employee sued for unpaid medical expenses in the amount of $1,266.30. The defendant insurance company stipulated that these expenses were necessarily incurred due to the employee’s accident but interposed a plea of res judicata, contending that the issue had been finally decided in the previous suit. The district court overruled the insurer’s exception and rendered judgment in favor of the employee for medical expenses, penalties and attorney’s fees. On appeal the intermediate court set aside the award of medical expenses, except with respect to expenses of $70 incurred after the first suit was filed, and reduced the amount of penalties and attorney’s fees. Sewell v. Argonaut Southwest Insurance Company, 355 So.2d 585 (La.App. 3d Cir. 1978).

The theory of civilian res judicata is that matters actually litigated and finally adjudged are presumed correct and, thus, should not be contradicted in a subsequent suit. La.Civ.Code arts. 2284-87, 3556(31); 2 M. Planiol, Civil Law Treatise, pt. 1, no. 54A(2), at 34-35 (11th ed. La.St.L.Inst. Transl.1959); Dixon, Booksh & Zimmering, Res Judicata in Louisiana Since Hope v. Madison, 51 Tul.L.Rev. 611, 617, 622 (1977). It is evident from a decree which expressly grants or rejects a thing demanded that the matter has been adjudged. A demand may also be impliedly rejected by the silence of a judgment which fails to grant the demand, provided that the matter has been actually litigated and finally adjudged so that it became an “object of the judgment.” La. Civ.Code art. 2286. Thus, when a litigant interposes a plea of res judicata, the court must examine not only the pleadings but also the entire record in the first suit, to determine whether the availability of the particular form of relief sought in the second suit was actually ruled upon. See, Dixon, Booksh & Zimmering, Res Judicata in Louisiana Since Hope v. Madison, 51 Tul. L.Rev. at 622. In Villars v. Faivre, 36 La.Ann. 398 (1884) this Court identified some of the factors by which it may be determined if a matter was adjudged by the silent rejection of the thing demanded, as follows:

“Our jurisprudence has rested on a solid foundation, the rule that all the issues presented by the pleadings, and on which evidence has been offered, will be considered as disposed of by a final judgment in the cause, and that demands passed over in silence must be considered as rejected in the absence of a special reservation.” 36 La.Ann. at 400.

The employee contends that the former judgment’s silence on the subject of medical expenses did not constitute an actual litigation of the matter because no evidence was offered in the previous case to prove the medical, surgical and hospital services which the employer was required to furnish. The court of appeal rejected this argument on the ground that “[i]t was obvious from the record that plaintiff had received rather extensive medical treatment . ” Sewell v. Argonaut Southwest Insurance Company, supra, at 588. We do not agree, however, that unparticularized evidence from which it may be inferred that the employee received medical treatment constitutes evidence offered on and directed toward the issues of the nature, cost and necessity of the medical services. The employee in a workmen’s compensation action is obliged to prove with specific evidence the actual medical services rendered as a consequence of the injury. See, La. R.S. 23:1203. As in deciding any workmen’s compensation dispute, in determining whether the employee actually offered such evidence and thereby caused the matter to be litigated, a court shall not be bound by technical rules of evidence or procedure, other than as provided in the workmen’s compensation statute, and must decide the merits of the controversy- as equitably, summarily and simply as may be. La.R.S. 23:1317. Thus, in the field of workmen’s compensation, courts must exercise greater vigilance against the perpetuation of an erroneous decision and less concern for the other conflicting interests served by devices for precluding litigation. See, Dixon, Booksh & Zimmering, Res Judicata in Louisiana Since Hope v. Madison, supra, at 611-12. Accordingly, since no evidence was presented as to the cost or necessity of medical expenses, and because evidence only incidentally related to the nature of the medical services was introduced, we conclude that the questions of the nature, cost and necessity of medical services, if any, to which the employee was entitled as a result of her employment-associated accident were not actually litigated or finally adjudged. The court of appeal, therefore, fell into error when it reversed the trial court judgment and sustained the plea of res judicata.

For the reasons assigned, the judgment of the court of appeal is reversed and the judgment of the district court is reinstated. All court costs are assessed to Argonaut Southwest Insurance Company.

SUMMERS, J., dissents for reasons assigned by the Court of Appeal. See 355 So.2d 585.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In the first suit, plaintiff sought weekly compensation benefits and payment of medical expenses incurred as a result of an accident on December 26, 1973. Judgment awarding compensation benefits made no mention of medical expenses. Compensation insurer appealed. Plaintiff did not appeal nor did she answer the appeal. Appellate court affirmed making no mention of failure of trial judge to award medical expenses.

Second suit is for medical expenses incurred because of and as a result of plaintiff’s injury from accident on December 26, 1973 (same as in first suit). All medical expenses were incurred prior to when first suit filed (except $70 incurred after that date). Court of appeal sustained defendant’s plea of res judicata as to plaintiff’s demand for medical expenses with the exception of $70 above mentioned.

The record reveals that plaintiff received extensive medical treatment from date of her injury until time that plaintiff’s first suit was filed. As noted by the court of appeal, “[pjlaintiff simply failed to prove up her claim for these expenses.” No contention is made that plaintiff was unaware of her accrued medical expenses or that evidence pertaining thereto was unavailable to her at the time of her first suit.

The object of demand is identical in both suits: plaintiff sought payment of medical expenses incurred as a result of the December 26, 1973 accident. That accident was the cause on which both suits were founded. Additionally, in both suits there was complete identification of parties and the parties confronted one another in the same capacities. Hence, the plea of res judicata should be maintained. La.Civil Code art. 2286.

I consider that the majority opinion encourages piecemeal litigation, subverts the finality of judgments, and renders it virtually impossible to determine when a lawsuit might ever be at an end.

Accordingly, I respectfully dissent.


author: DENNIS, Justice.

text:
    Randall Rex BARNES et al. v. SUN OIL COMPANY et al.
    Nos. 61773, 61805.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      James M. Funderburk, of Duval, Arcen-eaux, Lewis & Funderburk, Houma (Nicholas Gachassin, Lafayette, in only No. 61773), for plain tiffs-applicants in No. 61773 and for plaintiffs-respondents in No. 61805 Randall Rex Barnes and Joe B. Fincher.
    Michael J. McNulty, III, Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendant-respondent in both cases Sun Oil Co.
    James B. Supple, Franklin, for plaintiffs-applicants in No. 61773 and for plain tiffs-applicants in No. 61805 Cindy Breaux and Brenda Howard.
   DENNIS, Justice.

The ultimate question presented in this tort suit is whether summary judgment should have been granted declaring that plaintiffs’ exclusive remedy is under the workmen’s compensation statute. Settlement of the dispute hinges on whether defendant has shown there is no genuine issue as to a material fact, i. e., that the work Weco Welders, Inc. (Weco) performed for Sun Oil Company (Sun) was part of Sun’s “trade, business, or occupation” for purposes of establishing coverage by the workmen’s compensation statute. La. R.S. 23:1061.

Sun engaged Weco to do maintenance and repair work at Sun’s Sweet Bay Lake oil production facility. Plaintiffs, employees of Weco, were injured while repairing a gas flow line in the course of their employment as repair and maintenance workers at the facility. They brought this action against Sun for damages resulting from the alleged negligence of a Sun employee. Sun successfully moved for summary judgment on the ground that plaintiffs’ exclusive remedy for their injuries was under the workmen’s compensation statute since Sun was plaintiffs’ “statutory employer,” against whom a workman cannot maintain an action in tort. La. R.S. 23:1061. Plaintiffs appealed contending that defendants’ supporting affidavits were not made on personal knowledge and that the record indicated there was genuine issue as to a material fact which could be determined properly only by trial on the merits.

The court of appeal rejected plaintiffs’ arguments and affirmed. 358 So.2d 655 (La. App. 1st Cir. 1978). We granted writs because it appeared from plaintiffs’ applications and the court of appeal opinion that disputes existed as to material issues of fact, viz., disagreements as to the character of the work performed by Weco and plaintiffs at the Sweet Bay Lake facility and whether the work formed part of Sun’s “trade, business or occupation.”

Affidavits supporting or opposing motions for summary judgment must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967. Sun’s affidavits were made by its Lafayette district production manager who stated that the Sun Oil Company facility at Sweet Bay Lake was within his district and that he was therefore competent to testify to the facts therein set forth and that he knew the facts set forth of his own personal knowledge. The affidavits failed to “show affirmatively” that the affiant was competent to testify to the matters stated therein. The fact that it is stated as a conclusion that the affiant has personal knowledge of the facts will not suffice. The facts as set forth in the affidavit must show that he has such knowledge. Antonio v. Barnes, 464 F.2d 584 (4th Cir. 1972); Benoit v. Burger Chef Systems of Lafayette, Inc., 257 So.2d 439 (La. App. 1st Cir. 1972); B. Shientag, Summary Judgment, 4 Fordham L. R. 186, 198 (1935). The mere fact that the affiant had been assigned the title of Lafayette district production manager does not show affirmatively that he had detailed personal knowledge of the facts pertaining to Sun’s operations contained in his affidavit.

However, the argument that the supporting affidavit should have been disregarded was made for the first time on appeal. The record does not disclose that the plaintiffs filed a motion to strike or otherwise objected to the affidavit. Since it is entirely possible that the affidavit by the production manager could have been made on personal knowledge, we consider the inadequacy of the affidavit to be a formal defect which is deemed to be waived and conclude that the trial court properly considered it in ruling on the summary judgment motion. See, e. g., Associated Press v. Cook, 513 F.2d 1300 (10th Cir. 1975); 6 Moore’s Federal Practice, § 56.22[1] (2d ed. 1974); Wright & Miller, Federal Practice and Procedure, Civil § 2738 (1973); cf. Benoit v. Burger Chef Systems of Lafayette, Inc., supra.

The evidence supporting the motion for summary judgment shows that throughout the United States Sun is engaged in the exploration, drilling, production, transportation, manufacture and marketing of oil, gas and other petrol chemicals. Sun uses its facility at Sweet Bay Lake, and others like it, to engage in the production and processing of oil and gas through wells, compressor stations, heaters, pipelines, separation equipment, and other related equipment. The work performed by Weco and plaintiffs at Sweet Bay Lake consisted of repairing and maintaining glycol units, separators, reboilers, compressors, heaters, pumps, valves and maintaining and repairing gas lift and flow lines. Without periodic repair and continuous maintenance of the flow lines, oil and gas could not flow from wells to the production facility and its purpose could not be fulfilled. All major oil companies, including Sun, perform this kind of work with their own employees. Before Weco contracted to perform the maintenance and repair work at Sweet Bay, Sun performed these services with its own employees. Because of variables such as economic feasibility, location of the job site and the number of work hours, Sun decided to contract out the maintenance and repair work at the Sweet Bay facility. However, Sun continues to use its own employees to perform maintenance and repair work at other facilities similar to the Sweet Bay Lake facility. The maintenance and repair work includes welding, fitting, changing and salvaging pipe.

In opposing the motion for summary judgment the non-moving parties relied primarily upon the affidavit of plaintiff Joe B. Fincher who stated that he worked for Weco at Sweet Bay Lake as the welder and a pusher and performed other “oilfield specialty work.” During the time he worked at Sweet Bay he never saw any Sun employees doing welding; he never or rarely saw Sun employees changing or salvaging pipe; he never saw Sun employees doing any maintenance work at Sweet Bay Lake. Weco supplied nearly all of the welding equipment and other tools that were used by Weco at Sweet Bay Lake.

Because the court of appeal did not mention the opposing affidavit of Joe B. Fincher but found conclusively from depositions indicating that Sun employees supervised the plaintiffs’ work at the facility that Sun was a “statutory employer” we were initially of the view that the intermediate court had fallen into error. The mere fact that Sun supervised plaintiffs’ work would not clothe it with statutory employer status if the work performed by Weco for Sun was not part of Sun’s “trade, business or occupation.” Since even direct employees must be engaged in work which is part of the regular business of the employer, it is appropriate that the statutory employer concept should be similarly limited. See, Malone, Louisiana Workmen’s Compensation Law and Practice, § 125 (1951). Furthermore, it appeared to us initially that the Fincher affidavit reflected the existence of a genuine dispute as to whether the kind of work performed by Weco was performed regularly and routinely by Sun and other major oil companies as an essential and integral part of their “trade, business or occupation.”

After reviewing the entire record, however, we conclude that there is no essential dispute as to the fact that maintenance and repair services performed at Sweet Bay Lake by Weco were part of Sun’s “trade, business or occupation.” It is true that Fincher’s affidavit occasionally refers to the services as “specialty” work, whereas Sun’s affidavits characterize it as “routine” maintenance and repair. But it is not disputed that the work consisted of repair and maintenance services performed regularly as an essential and integral part of Sun’s business. The parties agree that Sun does not perform these tasks at Sweet Bay Lake with its own employees. However, this fact alone does not prevent the labor from being part of its regular business. The effect of La. R.S. 23:1061 is that the principal shall be considered the employer of the employees of the contractor engaged in work which is part of the regular business of the principal. Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972). Moreover, the opposing affidavit does not contest the fact that Sun and other oil companies regularly perform the same type work at other facilities as part of their businesses with their own employees.

Accordingly, it appears to be undisputed that the work performed by Weco at Sweet Bay Lake for Sun was part of Sun’s “trade, business or occupation.” Under these circumstances, the mover was entitled to judgment as a matter of law, and the summary motion was correctly granted. Mashburn v. Collin, 355 So.2d 879 (La. 1977); Cates v. Beauregard Electric Corporation, Inc., 328 So.2d 367 (La. 1976).

The judgment of the court of appeal is affirmed.


author: PER CURIAM.

text:
    STATE of Louisiana v. Bobby M. STOGNER.
    No. 61318.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

    Richard P. Massony, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Harry Hardin, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.

       DIXON and CALOGERO, JJ., would grant a rehearing.

   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Joseph CLUSE.
    No. 61575.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.
    Richard B. Stricks, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant is charged by bill of information with attempted crime against nature, a violation of LSA-R.S. 14:27; 14:89. After a jury trial, he was found guilty as charged and sentenced to serve two months in the parish prison. On appeal to this Court, defendant relies upon twenty-five assignments of error for reversal of his conviction and sentence. Assignments of Error Nos. 3, 17, and 23A have been abandoned.

In Assignments of Error Nos. 4 and 23, defendant alleges that the trial court erred in: (1) limiting the voir dire examination of prospective jurors by imposing the restriction that questions could not be addressed to individual jurors; and (2) failing to have the jury charges written and a copy served on the defendant prior to reading them to the jury after a pre-trial request by defense counsel under Article 801, C.Cr.P.

Our examination of the record reveals that defendant neither objected to the court’s handling of the voir dire nor to the failure to furnish the requested written charges; he has, therefore, waived the right to complain of error, if any, on appeal. LSA-C.Cr.P. art. 841; State v. Williams, La., 343 So.2d 1026 (1977).

Our examination of the record shows the remaining assignments of error to be without merit.

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

SUMMERS, J., concurs.


text:
    STATE of Louisiana v. Louis E. ROBINSON.
    No. 61693.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.
    Charles Williams, 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.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Harold Lee JACKSON.
    No. 61851.
    Supreme Court of Louisiana.
    Sept. 14, 1978.

      Jerry A. Kirby, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Carl Par-kerson, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Harold Lee Jackson was charged by bill of information with armed robbery, a violation of La.R.S. 14:64, was tried before a jury and found guilty, and was sentenced to fifteen (15) years at hard labor without benefit of parole. Defendant then appealed to this Court, which affirmed his conviction and sentence. State v. Jackson, 352 So.2d 701 (La.1977). After this Court handed down its decision, the defendant filed a motion for a new trial based on grounds that there was newly discovered evidence which if it had been introduced at trial would probably have changed the verdict. La.C.Cr.P. art. 851(3). Because it was filed within one year of the verdict, the motion was timely despite the fact that defendant had already been sentenced and his conviction and sentence affirmed. La.C. Cr.P. art. 853. After a hearing the trial court denied the motion. Defendant now seeks to appeal to this Court from that denial.

This Court does not have appellate jurisdiction over the matter. In criminal cases our appellate jurisdiction may only be invoked when a law or ordinance has been declared unconstitutional or when the defendant is appealing from a felony conviction or actual imposition of a fine exceeding five hundred dollars or a sentence of imprisonment exceeding six months. La.Const., Art. 5, § 5(D) (1974). As defendant has already availed himself of his right to appeal his conviction and sentence, his remedy is properly by application for supervisory or other writs. La.Const., Art. 5, § 5(A) and (E). See also State v. Little, 353 So.2d 255 (La.1977). If the motion had been filed prior to the rendition by this Court of its decision on the appeal and defendant had requested a remand to the trial court for a hearing, the situation would be different. See La.C.Cr.P. art. 853; State v. Shannon, 360 So.2d 193 (La.1978).

Although we have determined that defendant did not have a right of appeal, we treat his appeal as application for writs under Rule 1, Section 11 of the Rules of the Supreme Court of Louisiana. To afford the right of both parties to apply for rehearing, Rule 9, § 6 of the Louisiana Supreme Court Rules, the writ is granted. Nevertheless, we have reviewed the assigned error and conclude that the trial court did not abuse its discretion in denying the motion for a new trial. See State v. Harvey, 358 So.2d 1224 (La.1978); State v. Tucker, 354 So.2d 521 (La.1978); State v. Provost, 352 So.2d 661 (La.1977).

Accordingly, the judgment of the district court is affirmed.


text:
    STATE of Louisiana v. Leslie C. COLLINS.
    No. 60414.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Barrie Byrnes, Student Practitioner, William J. O’Hara, III, Supervising Atty., Loyola Law School Clinic, 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.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ruby GREEN.
    No. 61507.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Paul H. Jantz, of McReynolds & Jantz, DeRidder, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Melvin SMITH.
    No. 61567.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, District Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. William MONTGOMERY.
    No. 61740.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    John Wilson Reed, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay A. Larson, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant William Montgomery was charged by bill of information with three counts of armed robbery, violations of La. R.S. 14:64. On September 9, 1976, he was tried before a twelve person jury which found him guilty as charged of each count. Thereafter, the trial court sentenced defendant to serve forty-five (45) years at hard labor on each count, with the sentences to run concurrently. He has appealed on the basis of two assignments of error. After reviewing the contentions on the merits, we affirm the convictions and sentences.

However, we note that at defense counsel’s instance we have modified the internal procedure by which criminal cases are reviewed for placement on the regular or summary docket. Formerly, criminal appeals lodged in this Court were preliminarily reviewed after the thirty days allowed for filing of defense briefs had elapsed; and the granting of an extension of time in which to file defense briefs did not as a matter of course delay the reviewing process. See, State v. Duhon, 340 So.2d 151 (La.1976). Defense counsel complained that the preliminary decision should in all cases await the filing of a timely brief. We agree and accordingly, have altered our practice so that the granting of an extension postpones our initial review at least until the extension has expired.

AFFIRMED.

      . Subject to the modification set forth infra, the Duhon, 340 So.2d 151 (La.1976). summary docket system is explained in State v.


text:
    STATE of Louisiana v. Charles GIBSON.
    No. 61756.
    Supreme Court of Louisiana.
    Sept. 14, 1978.

      Robert R. Faucheux, Jr., Law Offices of Daniel E. Becnel, Jr., Reserve, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Roland J. St. Martin, Richard L. Edrington, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant Charles Gibson was charged by bill of information with theft in violation of LSA-R.S. 14:67. On January 10, 1978, after a six member jury trial, defendant was found guilty and was sentenced to serve two years with the Department of Corrections. On appeal, defendant urges four assignments of error.

We have reviewed three of defendant’s assignments of error and found them to be without merit. However, the fourth assignment of error, that the sentencing was not in accordance with La.C.Cr.P. art. 894.1, has merit. Article 894.1 enumerates various grounds which shall be accorded weight in the trial court’s determination of suspension of sentence or probation. It is further provided that the “court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” The trial court’s statement of reasons does not reflect that he followed the prescribed sentencing guidelines which would particularize this sentence to this defendant. See, State v. Jackson, 360 So.2d 842 (La.1978).

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


text:
    STATE of Louisiana v. Henry ANDERSON.
    No. 61775.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Writ Refused Oct. 26, 1978.
    Ronald A. Siegeltuch, Student Practitioner, William J. O’Hara, III, Supervising Atty., Loyola Law School Clinic, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph Roberts, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. RoLand ALEXANDER.
    No. 61776.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: . PER CURIAM.

text:
    STATE of Louisiana v. Willie ROSS.
    No. 61811.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   . PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Timothy McGUINNESS.
    No. 61812.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, 24th Judicial District Indigent Defender Board, Kenner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William Hall, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Robert B. WILSON.
    No. 61836.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    John J. Dolan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Carl WILLIAMS.
    No. 61857.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    John M.- Blanchard, Orleans Indigent Defender Board, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lester BRADLEY.
    No. 61858.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eugene EDWARDS a/k/a Eugene Williams.
    No. 61891.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Woodrow W. Wyatt, of Wyatt & Weimer, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren J. Hebert, Marilyn Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lionel HERBERT.
    No. 61896.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Raymond J. LeJeune, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eddie Lee WADDLES.
    No. 61897.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Robert E. Piper, Jr., of Piper & Brown, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Donald C. Brown, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Nelson SCOTT.
    No. 61937.
    Supreme Court of Louisiana.
    Sept. 14, 1978.

      Alton T. Moran, Director of the Office of Public Defender, Allen J. Bergeron, Jr., Appellate Counsel, Stuart R. Thomson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr„ Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David M. Miller, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Norman MURRAY.
    No. 61946.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Paul C. Tate, Jr., of Tate, Tate & Tate, Mamou, Michael J. Donahue, Houston, Tex., for defendant-appellant.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Wm. Pucheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed. The present contention that defendant had ineffective counsel is not here reviewed.


text:
    STATE of Louisiana v. Calvin AUSTIN.
    No. 61959.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Ned D. Wright, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Carl Par-kerson, Dist. Atty., Kenneth A. Rains, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Richard PERKINS.
    No. 61963.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed


text:
    STATE of Louisiana v. Lester HOCKMAN, Jr.
    No. 61991.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Robert L. Kleinpeter, of Kleinpeter & Kleinpeter, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Willie ALEXANDER, Jr.
    No. 62003.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Having been convicted of the offense of simple burglary, La.R.S. 14:62, and adjudicated a multiple offender under the provisions of La.R.S. 15:529.1, defendant was sentenced to serve one hundred years at hard labor. We note as an error patent on the face of the record of this appeal that the sentence is not authorized by law. See, La.C.Cr.P. art. 920(2).

La.R.S. 15:529.1(A)(3), as applied in this case, provides for a sentence of not less than twenty years nor more than the accused’s natural life. The term of 100 years actually imposed on defendant clearly exceeds his natural life, See, State v. Delaney, 359 So.2d 976 (La.1978), and therefore is illegal.

Accordingly, defendant’s sentence is annulled and set aside, and the case is remanded to the district court for resentenc-ing in accordance with law.


text:
    STATE of Louisiana v. Chester LEE.
    No. 62059.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. .Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: TATE, J.,

text:
    John COBBS and Georgia Cobbs v. Henry J. VEITH, Jr., Elbert B. Fendley, William Harvey McMillain, and U. S. Fidelity and Guaranty Co., and E. B. Fendley Painting Co., Inc.
    No. 62652.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: John Cobbs and Georgia Cobbs, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 303.

Writ denied.

DENNIS, J., would grant the writ.

TATE, J.,

would grant the writ. In my opinion, the maintenance of the fire-prone premises makes the owner thereof liable to his neighbor for the damage resulting from the fire, more probably than not due to the' defective condition of the premises. La.C. C.Arts. 667, 2317.


text:
    Jack A. SALVATORE a/k/a Jack Scott v. COVENANT BROADCASTING CORPORATION of Louisiana.
    No. 62667.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Covenant Broadcasting Corporation of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So .2d 325.

Writ denied: Pretermitting whether the three year prescription (C.C.Art. 3538) or the ten year prescription (C.C.Art. 3544) is applicable, the result is correct.


text:
    STATE of Louisiana ex rel. Phillip LEMOINE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62597.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Phillip Lemoine applying for remedial writs. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Larry CHAPMAN v. C. Paul PHELPS, Secretary Department of Corrections.
    No. 62598.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Larry Chapman applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.


text:
    TERRAL INDUSTRIES, INC. v. Ardis T. ALLEN, Jr., et al.
    No. 62581.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Terral Industries, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Webster.

Writ denied.


text:
    STATE of Louisiana v. Donald LEONARD.
    No. 62603.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Donald Leonard applying for remedial writs. Parish of Orleans.

Granted; a trial is ordered in this case within 30 days.


text:
    STATE of Louisiana v. Clyde ROBINSON.
    No. 62582.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana through the District Attorney, John T. “Bud” Seale applying for supervisory or remedial writs. Parish of East Carroll.

Writ denied.

SANDERS, C. J., and DENNIS, J., are of the opinion the writ should be granted.


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. Cheryl Booker QUALLS v. David CALDWELL, Justice, Second Judicial District Court.
    No. 63006.
    Supreme Court of Louisiana.
    Sept. 11, 1978.
   In re: Cheryl Booker Qualls applying for supervisory writs and stay order. Parish of Jackson.

Granted and previous stay order vacated. The trial judge is ordered to grant a recess and refer the motion to recuse to another judge in accordance with C.Cr.P. 675.

SUMMERS, J.,

agrees that the stay order previously issued should be vacated. Otherwise the trial should proceed. Applicant has an adequate remedy by appeal in the event of conviction. The motion to recuse has not been heard due to applicant’s fault.


text:
    STATE of Louisiana v. L. B. CARRIERE and Larry Zerangue.
    No. 62671
    Supreme Court of Louisiana.
    Sept. 14, 1978.
   In re: L. B. Carriere and Larry Zerangue applying for extension of time within which to file writs of certiorari and for stay of execution. Parish of St. Landry.

Writ denied.


text:
    STATE of Louisiana v. Richard Earl BUTLER.
    No. 63026.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
   In re: Richard Earl Butler applying for writ of certiorari, mandamus and stay order.

Writ denied. On the showing made, no abuse of discretion.


text:
    WEST BATON ROUGE PARISH SCHOOL BOARD v. T. R. RAY, INC.
    No. 62760.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
   ORDER

IN THE MATTER OF the West Baton Rouge Parish School Board applying for writs of certiorari and review. The petition of the relator in the above entitled and numbered cause having been duly considered, IT IS ORDERED that the American Arbitration Association and Mr. Roy C. Kuyrdendall, Jr., Arbitrator, be and they are hereby enjoined from further proceedings in this case until judgment shall be pronounced by this Court in the matter of the applications for writs numbered 62760 on the docket of this Court.


text:
    STATE of Louisiana v. Joseph A. BRADBERRY.
    No. 62703.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Joseph A. Bradberry, applying for remedial writ. Parish of Caddo.

Writ denied. (# 62,764) Appeal pending. La.Code Cr.P. Art. 363.

TATE, J.,

concurs. The petitioner’s contentions address themselves to a post-conviction remedy, if and when his conviction is affirmed.


text:
    Sam CAPITANO, Jr., d/b/a El-Cap Construction Company v. HUBER, HUNT & NICHOLS, INC., and Blount Brothers Corporation (A Joint Venture) and Louisiana Stadium and Exposition District.
    No. 62663.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Huber, Hunt & Nichols, Inc., and Blount Brothers Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied. The result is correct.

CALOGERO, J., Recused.


text:
    Ms. Debra ALEXANDER v. NEW ORLEANS PUBLIC SERVICE, INC. and John B. Owen. (Consolidated with Johnnie JOHNSON v. John P. OWEN and Nopsi, Rebecca Davis, widow of Frank Schief, Jr., Rose Mary Schief, wife of Henry Fox, Eva Lee Schief, wife of Clarence Lee, Jr., etc., et al.
    No. 62556.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Debra Alexander applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

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


text:
    Rhonda Marie WILSON et al. v. N. W. MAGEE et al.
    No. 62633.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Rhonda Marie Wilson applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles.

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


text:
    STATE of Louisiana v. Jack REYNIER.
    No. 62756.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   Jack Reynier, applying for remedial writ. Parish of Jefferson.

Granted; appeal reinstated.


text:
    STATE of Louisiana ex rel. John SULLEN v. Honorable Frank A. MARULLO, Jr., Judge.
    No. 62716.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: John Sullen applying for writ of mandamus. Parish of Orleans.

Not considered. The Clerk of this Court is ordered to transfer a copy of this application to the district court for consideration and action.


text:
    STATE of Louisiana, ex rel., Pete PICHLER v. Hon. Nestor L. CURRAULT, Jr., Judge.
    No. 62646.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Pete Pichler, applying for writ of mandamus. Parish of-Jefferson.

Writ denied. Mandamus — moot.


text:
    STATE of Louisiana v. Charles Edward NELSON.
    No. 62692.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Charles Edward Nelson, applying for remedial writs. Parish of Beauregard.

Writ denied.


text:
    STATE of Louisiana v. Lendon Rae COLE.
    No. 62700.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Lendon Rae Cole, applying for writ of mandamus. Parish of Union.

Writ denied. Mandamus application moot. Minute entry of August 24th indicates relator has obtained the relief prayed for.


text:
    STATE of Louisiana v. Carnies McMURRY.
    No. 62701.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Carnies McMurry applying for writ of mandamus and prohibition.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur DAVIS v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 62704.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Arthur Davis, applying for remedial writ. Parish of Orleans.

Writ denied.


text:
    DIRECTORY PUBLISHING CO., INC. d/b/a East Bank Telephone Directory v. Joseph LeFRERE d/b/a Air Conditioning & Refrigeration.
    No. 62709.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Joseph LeFrere d/b/a ABC Air Conditioning & Refrigeration applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Byron SCOTT v. Matthew S. BRANIFF, Judge, Criminal District Court.
    No. 62713.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Byron Scott, applying for writ of mandamus. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana, ex rel., David BROWN, Jr. v. Oliver P. SCHULINGKAMP, Judge, Criminal District Court, Section “F”, Parish of Orleans.
    No. 62699.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: David Brown, Jr., applying for writ of mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana, ex rel., Kenneth L. MOORE v. Honorable Oliver P. SCHULINGKAMP, Judge.
    No. 62715.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Kenneth L. Moore applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Floyd J. LEONARD.
    No. 62723.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Floyd J. Leonard, applying for remedial writs. Parish of Terrebonne.

Writ denied.


text:
    STATE of Louisiana v. Quinn O. HATFIELD.
    No. 62725.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Warren J. LOUIS.
    No. 62727.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Warren J. Louis, applying for remedial writ. Parish of Lafayette.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert MATTHEWS v. Lewis S. DOHERTY, III, Judge, Nineteenth Judicial District Court. East Baton Rouge Parish.
    No. 62697.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Robert Matthews applying for writ of mandamus. East Baton Rouge Parish.

Writ denied. Moot. District Judge has ruled.


text:
    STATE of Louisiana v. Peggy Lee GIBSON.
    No. 62751.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Peggy Lee Gibson, applying for writs of certiorari, mandamus, prohibition and/or review with stay order. Parish of Iberia.

Denied. The Court having been advised that the extradition proceeding has been dismissed, the matter is moot.


text:
    LANDIS CONSTRUCTION CO., INC. v. HEALTH EDUCATION AUTHORITY OF LOUISIANA.
    No. 62765.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Landis Construction Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 1045.

Granted.

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


text:
    Jeanette JOHNSON, wife of/and Warren Johnson v. NEW ORLEANS PUBLIC SERVICE, INC., and John B. Owen (Consolidated with Johnnie JOHNSON v. John B. OWEN and New Orleans Public Service, Inc., and Rebecca Davis, widow of Frank Schief, Jr., etc., et al.
    No. 62554.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Jeanette Johnson, wife of/and Warren Johnson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 272.

Granted.

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


text:
    Donna SCIPIO, wife of/and Lester Nicholas v. NEW ORLEANS PUBLIC SERVICE INC. and John B. Owen. Johnnie JOHNSON v. John P. OWEN, NOPSI et al.
    No. 62553.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Donna Scipio, wife of /and Lester Nicholas applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 272.

Granted.

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


text:
    Patricia SANDERS and Edna Leon v. N.O.P.S.I., Gerald Blackwell, John P. Owen, ABC Ins. Co. and XYZ Ins. Co. Johnnie JOHNSON v. John P. OWEN and N.O.P.S.I. et al.
    No. 62555.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Patricia Sanders and Edna Leon applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 272.

Granted.

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


text:
    Johnnie JOHNSON v. John P. OWEN and N.O.P.S.I. et al.
    No. 62564.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Johnnie Johnson applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 272.

Granted.

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


text:
    Pedro CHAMORRA et al. v. N.O.P.S.I. et al. Johnnie JOHNSON v. John P. OWEN and N.O.P.S.I. et al.
    No. 62557.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Pedro Chamorra et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 272.

Granted.

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


text:
    Marie Sanders HURKS et al. v. L. H. BOSSIER et al.
    No. 62519.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Marie Sanders Hurks, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 359 So.2d 1114.

Granted.

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


text:
    Johnnie JOHNSON et al. v. John P. OWEN, New Orleans Public Service, Inc., et al.
    No. 62552.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Mrs. Carrie Nelson Fernandez, Individually and as Testamentary Executrix of the Succession of Rebecca Davis, widow of Frank Schief, Jr., et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans # 8501. 359 So .2d 272.

Granted.

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


text:
    MARATHON PIPE LINE COMPANY v. Mrs. Charlie Holcombe PITCHER.
    No. 62768.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Mrs. Charlie Holcombe Pitcher, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 314.

Granted.

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


text:
    STATE of Louisiana v. Michael A. KONCIR, Jeanne Koncir and Marion Hutchens.
    No. 63002.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Michael A. Koncir, Jeanne Koncir and Marion Hutchens, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Concordia.

Writ 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 Richard P. Boyd, Jr. Judge of the 7th Judicial District, Court for the Parish of Concordia, to transmit to the Supreme Court of Louisiana, on or before the 29th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator — herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the day to be fixed by this court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Freddie MARTIN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62732.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Freddie Martin applying for habe-as corpus and certiorari review. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana, ex rel., Edward HILLS, a/k/a Edward J. Armstead, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62734.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Edward Hills, a/k/a Edward J. Armstead, Jr., applying for writs of certio-rari and habeas corpus.

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


text:
    STATE of Louisiana v. Don MITCHELL.
    No. 62735.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Don Mitchell, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Terrebonne.

Writ denied. Adequate remedy by review in the court of conviction.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Herman TALLEY and Farm Bureau Insurance Company.
    No. 62749.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: State Farm Mutual Automobile Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis.

Writ denied.


text:
    Walter DAVIS v. Charles C. FOTI, Jr., Sheriff.
    No. 62040.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Walter Davis, applying for remedial writs. Parish of Orleans.

Writ denied. It appears that defendant has not been sentenced twice for the same crime. His sentence on 1/9/76 in Section C, Criminal District Court # 251-374 was for a different offense than that on 2/5/74 Section G, Criminal District Court # 239-823, although in the former instance his multiple bill incorporated as a prior conviction that in # 239-823.


text:
    John C. MOORE v. John M. PARKS, Jr., et al.
    No. 62757.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: John C. Moore applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.

DENNIS, J., would grant a writ.


text:
    STATE of Louisiana v. Richard MAIDEN.
    No. 62736.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Richard Maiden, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Richard M. ADLER v. Susan ADLER.
    No. 62705.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Richard M. Adler, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.

SUMMERS, CALOGERO, and MARCUS, JJ., would grant a writ.


text:
    STATE of Louisiana v. Ray Anthony LANE.
    No. 62690.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Ray Anthony Lane, applying for writ of certiorari. Parish of Calcasieu. Writ denied. Relator has an adequate remedy by appeal in the event of conviction.

DIXON and DENNIS, JJ., dissent, would grant and order relator’s release on his own recognizance.


author: TATE, J.

text:
    Sam CAPITANO Jr., d/b/a El-Cap Construction Company v. HUBER, HUNT & NICHOLS, INC. and Blount Brothers Corporation (A Joint Venture) and Louisiana Stadium and Exposition District.
    No. 62668.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Sam Capitano, Jr., d/b/a El-Cap Construction Company, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied. The result is correct.

TATE, J.

is of the opinion the writ should be granted as to assignment 2 (denial of legal interest from date of judicial demand), but otherwise, denied.

CALOGERO, J., Recused.


text:
    STATE of Louisiana v. Gregory Wayne VINCENT.
    No. 62142.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Gregory Wayne Vincent applying for remedial writs. Parish of Calcasieu. Writ denied.

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


text:
    STATE of Louisiana ex rel. Marshall CRAFT v. Harry F. CONNICK, District Attorney.
    No. 62467.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Marshall Craft applying for remedial writs. Parish of Orleans.

Not considered. Application must first be made to the trial court.

DIXON, J., dissents, being of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Floyd J. LEONARD.
    No. 62723.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Floyd J. Leonard, applying for remedial writs. Parish of Terrebonne.

Writ denied.


text:
    Marie Sanders HURKS v. L. H. BOSSIER et al.
    No. 62726.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Mid-State Materials, Inc. and U. S. Fire Insurance Company, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lake Charles, State of Louisiana.

Writ denied.


text:
    STATE of Louisiana ex rel. Paul E. SMITH v. 19TH JUDICIAL DISTRICT COURT FOR the PARISH OF EAST BATON ROUGE.
    No. 62638.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Paul E. Smith, applying for writ of certiorari and mandamus. Parish of East Baton Rouge.

Writ denied. Relator is not entitled to this transcript. If defendant seeks an out of time appeal he must apply for same in district court.

SUMMERS and DENNIS, grant an out of time appeal. JJ., would


text:
    STATE of Louisiana v. Arthur BENWOIR, Jr.
    No. 62702.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Arthur Benwoir, Jr., applying for writ of certiorari. Parish of Orleans.

Writ denied. Appeal pending La.C.Cr.Pr. Art. 363.


text:
    Marie Sanders HURKS v. L. H. BOSSIER et al.
    No. 62726.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Mid-State Materials, Inc. and U. S. Fire Insurance Company, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu, State of Louisiana.

Writ denied.


text:
    Mr. and Mrs. Louis R. BECK, For themselves and For the Use and Benefit of Kristel Fay Beck, their minor daughter v. ALLSTATE INSURANCE COMPANY.
    No. 62761.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Mr. and Mrs. Louis R. Beck etc., et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 359 So.2d 1327.

Denied. The result is correct.


text:
    Terry V. BILLS, Jr. v. Hillward J. FRUGE.
    No. 62742.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Terry V. Bills, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 360-So.2d 661.

Writ denied.

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


text:
    STATE of Louisiana v. Gerald AUBERT.
    No. 63021.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Gerald Aubert applying for writs of certiorari, prohibition, mandamus and stay order.

Denied. Moot.


text:
    STATE of Louisiana v. James MONK, Jr.
    No. 63010.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: James Monk, Jr. applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Rodney COUVILLION and Martha McDougall.
    No. 62774.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Rodney Couvillion and Martha McDougall, applying for writs of certiorari, prohibition, mandamus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. James Nathan ORR.
    No. 62772.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: James Nathan Orr, applying for writ of certiorari. Parish of Rapides.

Writ denied.


text:
    STATE of Louisiana v. Gregory NEFF.
    No. 62753.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Gregory Neff, applying for writ of certiorari. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Kenneth McCANN v. 24TH JUDICIAL DISTRICT COURT FOR JEFFERSON PARISH.
    No. 62718.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Kenneth McCann, applying for writ of mandamus. Parish of Jefferson.

Not considered. No record in district court of this application. It is therefore transferred to the district court for action.


text:
    STATE of Louisiana ex rel. Arthur BAILEY, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62698.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Arthur Bailey, Jr., applying for remedial writ. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Carol GIST.
    No. 63061.
    Supreme Court of Louisiana.
    Sept. 19, 1978.
   In re: Carol Gist applying for writs of certiorari, prohibition and mandamus.

Writ denied. The showing made is insufficient to warrant action by this court.


text:
    STATE of Louisiana ex rel. Adam SMITH v. STATE of Louisiana.
    No. 61611.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Adam Smith, applying for remedial writs of certiorari. Parish of Jefferson.

Granted: An evidentiary hearing is ordered and a transcript must be made of the proceedings.


text:
    Patricia Jarvis von DAMECK et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    No. 62857.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: St. Paul Fire & Marine Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 283.

Writ denied.


text:
    Frankie LISTER et al. v. TEXACO, INC. et al.
    No. 62837.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Frankie Lister, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 361 So.2d 290.

Writ denied. The applicable substantive law is federal admiralty law, and we do not construe the court of appeal opinion as holding otherwise.


text:
    Frankie LISTER et al. v. TEXACO, INC. et al.
    No. 62859.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Berard Boats, Inc., and Commonwealth Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary.

Writ denied.


text:
    Catherine E. SMITH, Individually and on behalf of her minor daughter, Sharon E. Smith v. Robert CASTLE and Louise A. Keelen.
    No. 62843.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Louise A. Keelen, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 303.

Denied.


text:
    Herbert H. BURSTEIN v. Carole Hyman BURSTEIN.
    No. 62931.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Carole Hyman Burstein, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, and for a stay order.

Writ denied.


text:
    STATE of Louisiana v. Charles E. JAMES.
    No. 62847.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Charles E. James, applying for writ of certiorari. Parish of Orleans.

Denied — Appeal pending.


text:
    STATE of Louisiana ex rel. Granville TENNART and Joseph Turner v. Roger AUCOIN et al.
    No. 62845.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Granville Tennart and Joseph Turner, applying for writ of habeas corpus. Parish of East Baton Rouge.

Denied.


text:
    Kathryn KATCHELMYER v. John AMES et al.
    No. 62844.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: The Travelers Indemnity Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension.

Writ denied.


text:
    LAKE FOREST RACQUET CLUB, INC. v. LAKE FOREST, INC.
    No. 62826.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Lake Forest Racquet Club, Inc., applying for writs of review, certiorari and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Nelson AVERY v. Matthew S. BRANIFF, Judge Criminal District Court, Orleans Parish.
    No. 62805.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Nelson Avery, applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Phillip Ray ALLEN v. Mr. Frank BLACKBURN, Warden, Louisiana State Penitentiary, et al.
    No. 62801.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Phillip Ray Allen, applying for remedial writs. Parish of Richland.

Writ denied.


text:
    STATE of Louisiana v. Roger MENDOZA.
    No. 62790.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Roger Mendoza, applying for remedial writs. Parish of East Baton Rouge.

Denied; adequate remedy in event of conviction.


text:
    STATE of Louisiana v. Harry O. CRAMER.
    No. 62879.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Harry 0. Cramer, applying for remedial writ. Parish of Orleans.

Writ not considered. Did not apply to trial court.


text:
    STATE of Louisiana v. Edward L. DAVIS.
    No. 62866.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Edward L. Davis, applying for remedial writs. Parish of East Baton Rouge.

Not considered. No filing in the district court. Transfer to the district court for action.


text:
    STATE of Louisiana v. Harry O. CRAMER.
    No. 62846.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Harry 0. Cramer, applying for Writ of Habeas Corpus. Parish of Orleans.

Writ not considered. Did not apply to the trial court.


text:
    STATE of Louisiana v. Howard Edward CUDE.
    No. 62876.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Howard Edward Cude applying for writ of habeas corpus. Parish of Bossier.

Granted. The district court is ordered to obtain the return of applicant from the Texas penitentiary and try him within 90 days in the absence of which the detainer will be cancelled.


text:
    Raymond CABALLERO v. Flora WILKINSON, wife of/and Julius W. Cerdes.
    No. 62858.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Raymond Caballero, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

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


text:
    Frank J. HALL et al. v. ARKANSAS LOUISIANA GAS COMPANY.
    No. 62560.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Frank J. Hall et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 359 So.2d 255.

Writ granted.

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


text:
    Roy YOUNG et ux. v. Richard J. CLEMENT, M. D., et al.
    No. 62789.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Roy Young et ux., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 359 So.2d 1070.

Granted.

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


text:
    STATE of Louisiana in the Interest of Kenneth BATISTE and David James Cormier.
    No. 62821.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: The state of Louisiana, through the District Attorney, Hon. J. Nathan Stansbury, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 359 So.2d 1077.

Writ granted.

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


text:
    STATE of Louisiana ex rel., Rev. John W. JACKSON v. SECOND PARISH COURT FOR the PARISH OF JEFFERSON.
    No. 62803.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Rev. John W. Jackson, applying for writ of mandamus. Parish of Jefferson.

Writ granted in part. It is ordered that relator’s trial be commenced within 60 days or alternatively that the detainer be dismissed.


author: DENNIS, J.,

text:
    Mrs. Elizabeth Ann Daigrepont BURMASTER etc. v. GRAVITY DRAINAGE DISTRICT NO. 2 OF the PARISH OF ST. CHARLES et al.
    No. 62792.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Fromherz Engineers, Inc., applying for writ of certiorari. Parish of St. Charles.

Writ granted and consolidated with Appeal No. 62809.

DENNIS, J.,

concurs but is of the opinion that this court does not have appellate jurisdiction in No. 62809 because there is not a final judgment in the case.'

The petition of the relator in the above entitled and numbered ease having been duly considered, it is ordered that a writ of certiorari issue herein, directing the Honorable William Bradley Judge of the 29th Judicial District, Court for the Parish of St. Charles, to transmit to the Supreme Court of Louisiana, on or before the 6th day of October, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Jack LEBLANC, Jr.
    No. 62770.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Jack Leblanc, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Lafayette.

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 Peter C. Piccione, Jr., Judge Ad Hoc of the Lafayette City, Court for the Parish of Lafayette, to transmit to the Supreme Court of Louisiana, on or before the 6th day of October, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel., Jimmy Ray GALLOW v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 62865.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Jimmy Ray Gallow, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Evangeline.

Writ denied.


text:
    Gary W. WILLIS v. Kenneth G. EVERETT et al.
    No. 62812.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Gary W. Willis, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Beauregard. 359 So.2d 1080.

Writ denied.


text:
    Gary W. WILLIS v. Kenneth G. EVERETT et al.
    No. 62827.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Kenneth W. Everett and Government Employees Insurance Company, applying for certiorari. Parish of Beauregard. 359 So.2d 1080.

Writ denied.


text:
    Gary W. WILLIS v. Kenneth G. EVERETT et al.
    No. 62836.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Beauregard Parish Police Jury, applying for writ of certiorari. Parish of Beauregard. 359 So.2d 1080.

Writ denied.


text:
    William SONNIER v. GRAY TOOL COMPANY and Numa J. Matthieu.
    No. 62820.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Gray Tool Company and Numa J. Matthieu, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 359 So.2d 1111.

Writ denied.


text:
    Louis C. PHILIPS v. Paul C. CROMER.
    No. 62868.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Louis C. Philips, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 567.

Denied.


text:
    Curt E. BOWERS v. D. C. GREENE and Greene’s Marine Products, Inc.
    No. 62775.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: D. C. Greene and Greene’s Marine Products, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis. 360 So.2d 639.

Denied.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Burnis N. McINNIS et ux.
    No. 62813.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Burnis N. Mclnnis and William J. Mclnnis, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 360 So.2d 887.

Denied.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Burnis N. McINNIS et ux.
    No. 62776.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: State of Louisiana, through the Department of Highways, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 360 So.2d 887.

Denied.


text:
    Amelia BECK v. William LOVELL, M. D., et al.
    No. 62833.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Dr. William C. Lovell and St. Paul Fire & Marine Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 245.

Writ denied.


text:
    Patricia Jarvis von DAMECK et al. v. ST. PAUL FIRE & MARINE INS. CO.
    No. 62854.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Patricia Jarvis von Dameck, Cedric Wayne Jarvis, John T. Jarvis, Sammie Sis-trunk Jarvis and Cedric Scott Jarvis, applying for writ of certiorari. Parish of E. Baton Rouge. 361 So.2d 283.

Writ denied.


text:
    STATE of Louisiana v. Archie Calvin GUSS.
    No. 62923.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Archie Calvin Guss, applying for writ of habeas corpus. Parish of Orleans.

Denied.