author: MARCUS, Justice. SUMMERS, Justice, DIXON, Justice

text:
    James D. CRAWFORD v. AL SMITH PLUMBING & HEATING SERVICE, INC. and State Farm Fire and Casualty Co.
    No. 59787.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Val A. Schaff, III, Schaff & Currier, New Orleans, for plaintiff-applicant.
    James L. Donovan and Daniel R. Hynes, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-respondents.
   MARCUS, Justice.

Plaintiff, James D. Crawford instituted suit for workmen’s compensation benefits against his employer, A1 Smith Plumbing & Heating Service, Inc., and its insurer, State Farm Fire and Casualty Company, for an injury producing permanent total disability. His alleged disability resulted from an injury to his back caused or aggravated by an accident arising out of and in the course of his employment as a roofer with defendant company. Plaintiff also sought penalties and attorney fees against the insurer.

The trial judge, while finding that plaintiff may be unable to resume the work he was performing prior to the accident without some discomfort, rejected plaintiffs contention that he was permanently and totally disabled. Instead, compensation benefits were awarded at the rate of $65 per week for a period of fifty-two weeks. Statutory penalties and attorney fees were denied. Plaintiff appealed.

On original hearing before a panel of three judges of the court of appeal, two judges concluded that the judgment of the trial court should be amended to award plaintiff permanent and total disability benefits; one judge dissented from that view. Therefore, in accordance with La. Const, art. 5, § 8(B), it was ordered that the case be reargued before a panel of five judges of the court. After reargument, the court of appeal, by a vote of three to two affirmed the judgment of the trial court, finding that plaintiff was not permanently and totally disabled despite the “many congenital and degenerative defects of his spine.” We granted certiorari to review the correctness of this judgment.

The record reflects that plaintiff, James D. Crawford, is a thirty-four year old family man who has worked as a roofer since the age of eighteen. He started as a helper and worked his way up to mechanic, the highest position in his craft. During his sixteen years as a roofer, plaintiff suffered only one previous injury (1971) which was slight and of short duration. On December 2, 1974, while lifting an eighty-five pound bundle of shingles on a job, plaintiff felt something “pop and pull” in his back. He fell backward onto the roof where he was working and the shingles landed on his chest. Plaintiff testified that he felt “terrific pain” in his neck, back and legs and could not move. He was taken to Ochsner Foundation Hospital where he was seen in the emergency room. Examination revealed bilateral lumbar muscle spasm with flattening of the lumbar lordosis. Plaintiff was x-rayed, given pain pills and muscle relaxants and sent home to use local heat and bed rest.

Plaintiff remained in bed at home taking the medication prescribed. On December 9, 1974, he was seen by his family physician, Dr. Charles J. Ganucheau, who found marked spasm in plaintiff’s cervical and lumbosacral spine. X-rays revealed congenital defects in the cervical and lumbar spine, consisting of a fusion of C-l and C-2 and an apparent spina bifida occulta (incomplete union of the spinious process). According to Dr. Ganucheau, the fusion of C-l and C-2 would cause restriction in the neck and the spina bifida occulta could weaken a person’s back and make it more susceptible to injury. Physiotherapy consisting of ultra sound with massage was prescribed; plaintiff was treated continuously until August 4, 1974, at which time Dr. Ganucheau released him considering that he had achieved as much benefit as he could give him. It was his impression that plaintiff was under the care of an orthopedic doctor at the time. Dr. Ganucheau expressed the opinion that plaintiff should not return to the same type of work he performed prior to the accident. He admonished plaintiff not to do any heavy lifting.

Dr. Dunn saw plaintiff on December 20, 1974. It was his impression at that time that plaintiff had a degenerative disc disease of L5-S1 with a superimposed acute sprain. While he gave him permission to return to work, he warned him to be careful about lifting with his back and to try to do all lifting with his legs. He instructed plaintiff to return to consult him in the future if he experienced further difficulty. Plaintiff returned on April 29, 1975, with complaints of pain in his head, neck, back and lower extremities. Dr. Dunn considered it unethical to treat plaintiff while he was under the care of other physicians and advised plaintiff to return to Drs. Gan-ucheau and Byram.

Plaintiff was seen by Dr. George N. By-ram on February 20,1975, at the request of the insurance company. Dr. Byram found moderate spasm in the sacral area of the spine and diagnosed plaintiff’s condition as a cervical and lumbar strain with congenital fusion of the cervical vertebrae. Dr. Byram stated that plaintiff’s congenital defects of the spine would not be painful in themselves but would render plaintiff more susceptible to injury. Plaintiff was last seen by Dr. Byram on May 23, 1975, at which time he was still in pain. Nonetheless, he was released to return to work on June 1,1975, but was warned that he might continue to have discomfort in his back if he did any lifting or prolonged stooping. Dr. Byram advised plaintiff to consult him again if necessary.

Plaintiff’s testimony was to the effect that he had been in extreme pain since the accident. He admitted having performed some minor painting and repair jobs, not requiring heavy labor, to support his family. Plaintiff testified that he earned $200 per week prior to the accident. Plaintiff’s testimony relative to his suffering from pain and his inability to do heavy work was corroborated by a number of lay witnesses.

It is not disputed that plaintiff was injured by accident arising out of and in the course of his employment. The only issues are whether plaintiff is permanently and totally disabled as a result of the accidental injury and, if so, whether the insurer’s failure to pay disability benefits was arbitrary, capricious, or without probable cause thereby subjecting it to statutory penalties and attorney fees.

The pertinent question to be answered in the resolution of whether plaintiff is permanently and totally disabled is whether the accident has changed plaintiff’s condition so as to render him unfit for his former employment. Parks v. Ins. Co. of N. America, 340 So.2d 276 (La.1976); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969). An employer takes an employee as he finds him and is liable for compensation even when the disabling accident was such only because of a pre-existing disorder in the employee. St. Pe v. H. P. Foley Elec. Co., 341 So.2d 639 (La.App. 4th Cir. 1977); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3d Cir. 1976). It is also well settled that workmen’s compensation is payable when an occupational accident aggravates or accelerates a pre-existing condition and produces disability. Chism v. Kaiser Aluminum & Chemical Corporation, 332 So.2d 784 (La. 1976); Johnson v. Travelers Ins. Co., 284 So.2d 888 (La.1973). Moreover, it has been consistently held that the law providing for permanent total disability benefits (La.R.S. 23:1221(2)) does not contemplate that an injured workman is required to return to his regular work if he is unable to perform that work without substantial pain or when it will materially increase the hazard to his health and safety or to the health and safety of his employees. Williams v. Hudson, 261 La. 959, 261 So.2d 629 (1972); Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969); St. Cyr v. Industrial Metals of the South, Inc., 341 So.2d 643 (La.App. 4th Cir. 1977); Loyd v. Atlas Const. Co., 341 So.2d 1245 (La.App. 1st Cir. 1976), cert. denied 344 So.2d 4 (La.1977). In each case, it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Tantillo v. Liberty Mut. Ins. Co., 315 So.2d 743 (La. 1975).

A careful review of the record convinces us that plaintiff is permanently and totally disabled within the intendment of the workmen’s compensation law. In reaching this conclusion, we are impressed by the fact that plaintiff was employed as a roofer for some sixteen years prior to the accident, reaching the highest level of his craft, without having had any previous injury except on one occasion and then the injury was only slight and of short duration. Moreover, plaintiff’s job as a roofer requires heavy lifting and frequent stooping. The accident that caused plaintiff’s injury was substantial and could have easily damaged his back sufficiently to cause the pain about which he complains. The medical evidence is generally to the effect that plaintiff’s congenital spinal defects are of such a nature as to cause restriction in his neck and to make his back more susceptible to injury. Dr. Ganucheau did not consider that plaintiff should return to his former employment as a roofer. While Drs. Dunn and Byram opined that plaintiff could return to work, their recommendations were not without qualifications. The lay testimony supported plaintiff’s claim that he was unable to return to his former' employment without substantial pain. Accordingly, we are convinced that plaintiff has established by a preponderance of the evidence that he would have to work in sub- * stantial pain in the performance of his duties as a roofer and that the work-related accident either caused this disability or aggravated the pre-existing congenital spinal defects in plaintiff’s back so as to produce his present disability. Hence, plaintiff is entitled to permanent total disability benefits.

However, plaintiff’s prayer for penalties and attorney fees must be rejected. La.R.S. 22:658 provides for the imposition of penalties and attorney fees when the failure to pay workmen’s compensation benefits “is found to be arbitrary, capricious, or without probable cause.” The penalty provision is stricti juris and should be imposed only in those instances in which the facts negate probable cause for nonpayment. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974). When an insurer’s termination of compensation is based upon competent medical evidence, the action is not arbitrary and capricious. Levine v. Liberty Mutual Insurance Company, 305 So.2d 665 (La.App. 3d Cir. 1974). In the instant case, the insurer relied upon the medical reports of Drs. Dunn and Byram in terminating benefits on June 12, 1975. These reports were to the effect that plaintiff could return to work. Moreover, Dr. Ganucheau had not submitted a medical report to the insurer at the time. Hence, we are unable to say that defendant insurer acted arbitrarily, capriciously or without probable cause in its failure to pay permanent total disability benefits.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to award workmen’s compensation benefits for permanent total disability at the rate of $65 per week from December 2, 1974, for a period not exceeding five hundred weeks, with legal interest on each installment from due date until paid, subject to a credit for all payments made by defendants; judgment of court of appeal is affirmed in all other respects; all costs of these proceedings are assessed against defendants.

DIXON, J., concurs in part and dissents in part with reasons.

SUMMERS, Justice,

dissenting.

On this purely factual case I would not overrule the trial court and Court of Appeal. See 344 So.2d 63.

DIXON, Justice

(concurring and dissenting).

I concur in the total and permanent disability finding, but dissent from the failure to award penalties and attorney’s fees.

      . 344 So.2d 63 (La.App. 4th Cir. 1977).

      . 346 So.2d 215 (La. 1977).

      . Medical evidence consisted of the testimony at trial of Dr. Charles J. Ganucheau, general practitioner; deposition and written reports of Dr. George N. Byram, orthopedic surgeon; and answers to interrogatories and written reports of Dr. A. William Dunn, orthopedic surgeon.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    ACADIANA BANK v. Kimball Aubrey FOREMAN et al.
    No. 59800.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      David S. Cook, DeVillier & Ardoin, Eunice, for plaintiff-respondent.
    Jacque B. Pucheu, Pucheu & Pucheu, Eunice, for intervenor-applicant.
   DIXON, Justice.

This case involves the ranking of privileges on movables in a drive-in restaurant. The contest is between Acadiana Bank, which holds a chattel mortgage on the furniture and fixtures, and intervenor, Wilson J. Moosa, owner and lessor of the building. The trial court rejected the demands of the intervenor-lessor, holding that the bank’s lien under the chattel mortgage was superi- or in rank. The Court of Appeal, with one judge dissenting, affirmed (343 So.2d 1138 (La.App.3d Cir. 1977)), and we granted writs to review that ruling.

Helen Doty operated a “Frostop” restaurant in Eunice in a building owned by Wilson J. Moosa. Kimball Aubrey Foreman and his wife arranged with Mrs. Doty and Moosa to take over the business. Mrs. Doty sold the movables to Foreman and his wife, who agreed with Moosa to rent the building for $160.00 a month through December 31, 1974. These agreements were completed on September 18,1974, at which time a written lease was executed between the Foremans and Moosa for a period of five years at a rent of $400.00 a month, to begin on January 1, 1975. On the same day, September 18, 1974, the Foremans borrowed $12,000 from Acadiana Bank, evidenced by a hand note. The Foremans also executed a collateral mortgage on the equipment Mrs. Doty sold them, and pledged a collateral mortgage note in the amount of $17,000, to secure the hand note.

The officers of the Acadiana Bank participated in the arrangements, and were aware that the mortgaged property was in the building owned by Moosa and leased to the Foremans. The lease, which was to have commenced on January 1, 1975, was recorded on September 20, 1974. The collateral chattel mortgage was not recorded until October 3, 1974.

The indebtedness to the bank was reduced from $12,000 to $5000 by August 14, 1975. On that date Mrs. Foreman executed a $5000 hand note and delivered it to the bank; the September 18,1974 note for $12,-000 was apparently marked paid and returned to the Foremans.

Matrimonial difficulties between the Foremans resulted in a dissolution of their marriage later in 1975. Apparently, as. a part of the settlement of the community property, arrangements were made, and the bank returned Mrs. Foreman’s $5000 note to her on October 6, 1975, and took a note from Mr. Foreman on October 7,1975 in the amount of $6234.24. Each note was secured by a continuing pledge of the collateral mortgage note, which never left the hands of the bank.

Foreman did not make the payments on the $6234.24 note dated October 7,1975, and the bank proceeded to foreclose by executo-ry process. Moosa intervened, contending that his lessor’s lien and privilege for unpaid rent primed the bank’s chattel mortgage.

The privilege of the chattel mortgage is effective as to third persons from the date of its recordation. R.S. 9:5354.

Since it was recorded on October 3, 1974, the chattel mortgage primes only those liens arising thereafter. The oral lease between Moosa and Foreman, commencing on September 18, 1974 and ending December 31, 1974, gave the lessor a lien superior to that of the bank’s chattel mortgage.

The questions, then, are (1) did Moosa’s lien continue without interruption, even though the' written lease superseded the oral lease on January 1, 1975? (2) did the bank’s privilege arising from the chattel mortgage continue without interruption in spite of renegotiation of Foreman’s indebtedness during the term of the written lease?

The affirmative answer to the second question is supplied by C.C. 3158. When a collateral chattel mortgage note is pledged to a creditor, and when the note remains in the hands of the creditor, to secure a particular loan or any other obligation, existing or thereafter arising (as provided in the chattel mortgage note in the instant case), the pledge continues against third persons, and the new liabilities or loans are “secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them . . . ” C.C. 3158. New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252 (La.App. 4th Cir. 1972), cert. den. 262 La. 309, 263 So.2d 47 (La.1972), noted in 47 Tul.L.Rev. 211). Nathan and Marshall, “The Collateral Mortgage,” 33 La.L.Rev. 497, 510; LeVan, “Security Devices,” 33 La.L.Rev. 228.

The answer to the first question, however, is negative. Except in cases of tacit reeonduction, the life of the lessor’s privilege, in effect, spans only the duration of the lease in existence when the privilege first attached, to secure only the rent arising under the lease. If one lease is superseded by another lease, the effectiveness of the old lessor’s privilege ends and a new lessor’s privilege arises.

(Tacit reconduction (C.C. 2688, 2689) is said to result in a continuation of the old lease and the security of the privilege. Comegys v. Shreveport Kandy Kitchen, 162 La. 103, 110 So. 104 (1926); McKesson Parker Blake Corp. v. Eaves & Reddit, Inc., 149 So. 294 (La.App. 1st Cir. 1933). This interpretation of the civil code provisions was criticized in “Tacit Reconduction — A New Lease,” Lapeyre, 1 La.L.Rev. 439).

In the absence of reconduction, however, the lessor’s privilege is dependent upon a particular lease. The conflict between the privilege of the chattel mortgage and the lessor’s privilege is discussed in “Problems of Chattel Mortgages,” Dainow, 13 La.L.Rev. 537, 543:

“Lessor. The existence of the lessor’s privilege is dependent upon two elements: (1) a lease between the parties, (Fisk v. Moores, 11 Rob. 279 (La. 1845)) and (2) the presence of the effects in the premises. (Arts. 2705-2709, 3217(3), 3218, La.Civil Code of 1870). Accordingly, the earliest point of time when these two elements concur is the date on which the lessor’s privilege arises. (Youree v. Limerick, 157 La. 39, 101 So. 864 (1924)). This is not dependent upon any rent being due, (Ibid.) the privilege is protection for a continuing relationship.
The lessor’s privilege is predicated upon a lease; therefore, it must be a particular lease. Consequently, if either by agreement or operation of law there comes into existence a new lease, that also means a new privilege with a new date of creation. Thus, if the lessor and lessee (under a monthly lease for an indefinite term) agree upon a change in the rent, they are deemed to have made a new lease, (McGuffin v. Barkett, 44 So.2d 195 (La.App.1950); Weaks Supply Co. v. Werdin, 147 So. 838, and 154 So. 378 (La.App. 1933, 1934), criticized in Note, 9 Tulane Law Review 124 (1934)) and the privilege deriving from the new lease cannot have a date of creation any earlier than the concurrence of the new lease and the presence of the effects on the premises. This means that a chattel mortgage which came into existence after the first lease but before the new lease thereby moves into first rank ahead of the lessor’s privilege. (Cf. Easterling v. Brooks, 213 La. 519, 35 So.2d 132 (1948)).

In Youree v. Limerick, 157 La. 39, 101 So. 864 (1924), the operator of a restaurant borrowed money from Papas and gave his note, secured by a chattel mortgage on the furniture and fixtures. Limerick subsequently bought the business and assumed the obligations under the chattel mortgage, but arranged for the cancellation of the prior lease, and the execution of a new lease, apparently on the same terms. Since these facts resulted in the superior rank of Papas’ chattel mortgage, the court found it necessary to pass on the landlord’s “plea of estoppel” (which was decided in favor of the landlord).

The three requisite elements to a contract of lease are the thing, the price, and the consent. C.C. 2670. It has been held that when by agreement the price is changed, there is a new price and a new consent, and therefore a new lease. Weaks Supply Co. v. Werdin, 147 So. 838 (La. App.2d Cir. 1933), affirmed, 154 So. 378 (La.App.2d Cir. 1934), criticized, 9 Tul.L. Rev. 124; Thigpen v. Wall Printing Corp., 145 So. 714 (La.App.2d Cir. 1933).

In Weaks, supra, a written lease was entered into at a monthly rate of $100 without a definite duration having been agreed upon. Some time later the monthly rental was reduced to $80 by verbal agreement. Before the rent was reduced the lessee executed a chattel mortgage. The court held that a new lease was created by the rent reduction even though no new written agreement was executed. The original lease would have primed the chattel mortgage, but the continuity of the lessor’s privilege was broken when the new lease became effective; therefore, the chattel mortgage prevailed. In Thigpen, supra, after the lessee had stayed on the premises on a month-to-month basis after expiration of the lease’s three year term, a new lease was executed for the same rental and same duration. A chattel mortgage recorded during the period the first lease was in operation was held to prime the lessor’s lien acquired under the new lease.

In Easterling v. Brooks, 28 So.2d 523 (La. App.2d Cir. 1946), plaintiff, on December 1, 1943, leased to defendant twenty acres for two years. Brooks used a truck in the farming operation, and mortgaged it to Walling on March 3, 1944, during the first term of the lease. Although part of the rent under the first lease was not paid, a new (oral) lease was agreed on by plaintiff and defendant. Another lease was made for the main dwelling, which had been excepted from the original lease. The court held that the landlord’s privilege arising from the original lease primed the chattel mortgage, but that the privilege of the mortgage primed the landlord’s lien arising under the leases made after the recordation of the chattel mortgage.

In McGuffin v. Barkett, 44 So.2d 195 (La.App.2d Cir. 1950), the tenant mortgaged movables during a month-to-month lease. Later the rent was raised, and then reduced. The court held that the continuity of the lease ceased when the rent was changed, and the chattel mortgage primed the subsequently arising lessor’s lien.'

The jurisprudence is uniform that the lessor’s privilege depends on the existence of the lease. There is no landlord-tenant relationship without the lease. As observed by Dr. Dainow above, the earliest time that the lessor’s privilege can effect movables is that time when the lease is in effect and the movables are on the premises. The lease in effect when Foreman defaulted was for a term beginning January 1, 1975. The bank’s chattel mortgage was recorded October 3, 1974, and therefore primed the lessor’s privilege.

For these reasons, the judgment of the Court of Appeal is affirmed, at relator’s cost.

CALOGERO, J., dissents for the reasons assigned by the dissenting judge in the Court of Appeal.

      . “Every such mortgage shall be effective as against third persons from the time of the filing in the proper offices, and the filing shall be notice to all parties of the existence of the mortgage, which shall be superior in rank to any privilege or preference arising subsequently thereto.”

      . “But this privilege shall take place against third persons only in case the pledge is proved by some written instrument, in which shall be stated the amount of the debt intended to be secured thereby, and the species and nature of the thing given in pledge; or the description of the thing pledged may be contained in a list or statement annexed to the instrument of pledge and giving its number, weight or descriptive marks.
      When a debtor wishes to pledge promissory notes, bills of exchange, bills of lading, stocks, bonds, policies of life insurance, or written obligations of any kind, he shall deliver to the creditor the notes,' bills of exchange, bills of lading, stocks, bonds, policies of life insurance, or other written obligations, so pledged, and such pledge so made, except as hereinafter provided with regard to life insurance policies, shall without further formalities be valid as well against third persons as against the pledger thereof, if made in good faith, provided that where the pledge of instruments not negotiable, the debtor must be notified thereof, it being understood that no notification is required in the case of the pledge of certificates of corporation stock. All pledges may be made by private writing of any kind if only the intention to pledge be shown in writing, but all pledges, except of a life insurance policy in favor of the insurer, must be accompanied by actual delivery. The pledge of a life insurance policy must also be evidenced by a written assignment thereof as security to the pledgee and by delivery of the pledge or assignment to the insurer and, unless the beneficiary thereof may be changed upon the sole request of the insured, or unless pledge or assignment without the consent of the beneficiary be specifically provided for in the policy, must be accompanied by the consent of any named beneficiary who is not the insured or his estate; it is further provided that whenever a pledge of any instrument or item of the kind listed in this article is made to secure a particular loan or debt, or to secure advances to be made up to a certain amount, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, and the pledged instrument or item remains and has remained in the hands of the pledgee, the instrument or item may remain in pledge to the pledgee or, without withdrawal from the hands of the pledgee, be repledged to the pledgee to secure at any time any renewal or renewals of the original loan or any part thereof or any new or additional loans, even though the original loan has been reduced or paid, up to the total limit which it was agreed should be secured by the pledge, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, without any added notification or other formality, and the pledge shall be valid as well against third persons as against the pledger thereof, if made in good faith; and such renewals, additional loans and advances or other obligations or liabilities shall be secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them; the delivery of property on deposit in a warehouse cotton press, or on storage with a third person, or represented by a bill of lading, shall pass to the pledgee by the mere delivery of the warehouse receipt, cotton press receipt, bill of lading, or storage receipt, showing the number, quantity or weight of the thing pledged; and such pledge so made, without further formalities, shall be valid as well against third persons as against the pledger thereof, if made in good faith. Such receipts shall be valid and binding in the order of time in which they are issued for the number, quantity, or weight of the things pledged, if there should not be enough to meet all receipts so issued. Nothing herein contained shall be construed to repeal any part of Title 9, Sections 4301 to 4382, both inclusive of the Louisiana Revised Statutes of 1950.”

      . A notation on the mortgage read:
      “The note herein given and the mortgage herein granted and executed is for the sole purpose of being used as collateral security by said mortgagor herein and for that reason the note executed may be pledged to secure loans or advances from time to time and upon payment of said indebtedness the said collateral may be returned to the mortgagor without extinguishment of the mortgage herein granted to secure the same and may again, at any time, be reissued by the said mortgagor and be a valid and existing indebtedness of the said mortgagor in favor of the holder or holders of the same as collateral security, either for the debt contracted by the said mortgagor or to secure the indebtedness of another with the same validity and effect as is now given to it.”
      The collateral mortgage note contained the following notation;

        “This Note is to be used for Collateral purposes and may be negotiated and re-negotiated without any further authentic act.”

      . Odom v. Cherokee Homes, Inc., 165 So.2d 855 (La.App. 4th Cir. 1964), differs factually from the case before us; there, the collateral mortgage notes had not “remained in the hands of the pledgee,” (C.C. 3158) but had been transferred from the original pledgee to another person or corporation. There is language in the Odom case which might be construed to be contrary to the provisions of C.C. 3158. To the extent that Odom v. Cherokee Homes, Inc., supra, might be in conflict with this opinion, it is overruled.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Anthony J. MART, Jr., Appellant.
    No. 59822.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      F. Irvin Dymond, William L. Crull, III, Dymond & Crull, 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.
   TATE, Justice.

The defendant Mart was convicted of second degree murder, La.R.S. 14:30.1 (1975), and sentenced to life imprisonment. Upon his appeal, he relies upon nine assignments of error.

We find reversible merit in the assignments relating to the trial court’s failure to afford him special instructions requested by him as to the defense of intoxication (Assignments 12, 15). By reason of the trial court’s failure to give these special written charges requested by the defendant, which were appropriate under the facts in evidence, the trial jury did not receive instructions from the court as to the law applicable by which it could properly have considered the accused’s principal defense to the offense charged.

Facts

The state’s evidence shows:

The accused Mart and state witness Jones met in a barroom about 9:30 p. m. to 10:00 p. m. one night. They drank beer together until approximately 2:00 a. m. Jones testified that he himself drank between 20 and 25 beers. (When defendant Mart took the stand in his own defense, he testified that he himself had drunk between 15 and 20 beers.) Jones and Mart were both nineteen years of age at the time.

The accused then requested Jones to drive him to his (the accused’s) brother-in-law’s house in Metairie. He was angry at his brother-in-law, whom he stated was causing trouble to the accused’s sister, from whom he had separated.

Before going to the brother-in-law’s house, the accused Mart went by his parent’s home to get a 20-gauge shotgun. Jones and Mart then went to the brother-in-law’s house, where the defendant shot and shattered the front living room picture window.

On their return from Metairie, they drove past two young men of a race different than their own. Jones stated that the defendant requested him to “turn around, I am going to shoot over their heads and scare them.” Jones turned, the defendant loaded the shotgun, and sat in the window of the car, and then fired across the top of the two young men, who jumped out of the way.

Jones testified that, as they sped off, he and Mart were “laughing and talking how they were running out of the way.” However, next day, the two learned that the birdshot had struck one of the young men, the decedent Dunn, who died as a result.

Mart’s testimony essentially confirmed this account. He further stated that the reason he desired to shoot near (but not at) the two young men to scare them was that one of them had made an obscene gesture with his hand as they went by the first time. (Jones did not so testify.)

The Accused’s Defense

The accused’s defense does not deny this senseless shooting and senseless death. The substance of the defense, rather, is that, whatever criminal offense Mart may have been guilty of, he nevertheless lacked the “specific intent to. kill or to inflict great bodily harm” required under the facts to convict him of the crime charged, second degree murder, La.R.S. 14:30.1 (1975).

In support of the defense of lack of specific intent, he requested special charges as to intoxication precluding the presence of the specific criminal intent required for the offense charged, La.R.S. 14:15 (1950). (For instance, if no specific criminal intent to kill was found, the jury might have returned the responsive verdict of guilty of manslaughter, La.C.Cr.P. Art. 814A(2), a less serious crime.)

La.R.S. 14:15 provides:

“The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
“(1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility.
“(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.” (Italics ours.)

Intoxication-defense Charges

The trial court refused the special charges as to intoxication. It ruled: “ * * there is no evidence before the court of intoxication. There is evidence of drinking. No one has attempted to prove the defendant was intoxicated.”

Under the facts here presented, the trial court was in error in refusing to give these special charges requested. Under similar circumstances — where in a murder prosecution there was evidence that the defendants “had been drinking” and “also” that they “were in some degree of intoxication” — , this court reversed the convictions for the trial court’s failure to charge that partial or total intoxication might be taken into consideration by the jury in determining whether the defendants had the specific intent required for guilt of the crime charged. State v. Youngblood, 235 La. 1087, 106 So.2d 689, 690-91 (1958).

As we there stated, “the judge is required to cover every phase of the case supported by evidence whether or not accepted by him as true.” 106 So.2d 691. We further observed: “The question of whether the circumstances in the instant case indicated that appellants were in such an intoxicated condition as to preclude the presence of the specific criminal intent to inflict great bodily harm was a question of fact for the jury; and if the jury found that they were, this constituted a defense to a prosecution for the crime charged.” 106 So.2d 691. See also State v. Lentz, 306 So.2d 683 (La.1975).

In the present record, the evidence of the extensive pre-crime drinking, coupled with the bizarre behavior before and at the time of the crime, constituted appreciable evidence from which the jury might draw the inference that the accused was intoxicated. It was for the jury, not the judge, to determine what effect, if any, this intoxication had upon the presence or absence of the specific intent to kill or inflict great bodily harm required for guilt of second degree murder (and not required for the responsive lesser verdict of manslaughter).

The effect of the denial of the special written charges was to deprive the accused of jury instructions and consideration of his principal defense that he lacked the requisite specific intent required for a conviction of second degree murder, as charged. Therefore, we must reverse the conviction and remand for a new trial.

Other Assignments

We note several other errors in the denial of special charges or modifications of the general charge requested by the accused. In view of the reversal required by the assignments previously discussed, it is unnecessary for us to determine whether any of these assignments by itself or in cumulation might also require reversal. Nevertheless, to avoid the occasion of error on the remand for a new trial, we note that, under the facts and in. the context of the present general charge, the defendant was entitled to the requested special charges or modifications of the general charge, as represented by the following assignments:

Assignment 13 (special charge 3) (the negligent homicide charge), see State v. Devenow, 253 La. 796, 220 So.2d 78, 83 (syllabus 10) (1969);

Assignment 14 (special charge 4) (the charge about a party vouching for the veracity of its witnesses);

Assignment 16 (objection to general charge on motive: “The law considers that no man does any act without a motive for doing it . . . it is not necessary to establish a motive to warrant a conviction”). Once a charge concerning motive was given, the charge was incomplete, since affirmative evidence disclosed lack of motive: Under such circumstances, as defendant requested, the jury should be instructed that a lack of motive may properly be considered as a circumstance mitigating against specific intent. State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Iles, 201 La. 308, 9 So.2d 601 (1942); cf., State v. Johnson, 324 So.2d 349 (La.1975);

Assignment 18 (objection to general charge on a presumption: “If, for instance, a man armed with a deadly weapon should suddenly, with little or no apparent cause or provocation, kill another, the law would presume that such a killing was deliberate and intentional and done for the purpose of killing or inflicting great bodily harm”). Having emphasized the presumption, the trial court should also have instructed the jury, as requested by the defendant, that this presumption may nevertheless be overcome by rebutting evidence. La.R.S. 15:432.

Decree

For the reasons assigned, we reverse the conviction and sentence, and we remand this case to the district court for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissents.

SUMMERS, J., dissents.

DENNIS, J., concurs in the principal holding of the majority opinion.

      . As re-enacted by Act 380 of 1975 and applicable to the conduct at the time of the offense, the crime charged is defined as follows:
      “Second degree murder is the killing of a human being:
      “(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      “(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.
      “Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation, or suspension of sentence for a period of forty years.”


text:
    STATE of Louisiana, Appellee, v. Isabelle TROMBINO, Appellant.
    No. 59894.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.
    Hilary J. Gaudin, New Orleans, Gerald Jeffers, Gretna, James O. Manning, Metair-ie, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Roy F. Blondeau, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of second degree murder, La.R.S. 14:30.1 (1975), and sentenced to life imprisonment. Upon her appeal, the defendant principally relies upon the alleged improper curtailment of her cross-examination of a state witness (Assignments 1 and 2).

Context Facts

The defendant, Mrs. Trombino, admittedly shot her husband to death in the family residence in the late afternoon. The evidence of both the state and the accused shows a series of quarrels between the two immediately earlier. Essentially, the wife defends on the ground of a justifiable homicide committed in self-defense. La.R.S. 14:20(1).

In support of this defense, based upon her claim of having been severely beaten immediately prior to the killing, she desired to introduce evidence of the decedent’s dangerous character and of his prior threats against her. These are admissible in support of a plea of self-defense — provided that, as preliminary proof, appreciable evidence shows that the victim committed an overt act against the accused sufficient to put the latter in reasonable apprehension of serious bodily harm. La.R.S. 15:482 (1952); State v. Green, 335 So.2d 430 (La. 1976); State v. Lee, 331 So.2d 455 (La.1975).

Curtailment of Cross-Examination

Assignments 1 and 2 relate to the alleged improper curtailment of cross-examination of Detective Simons. The cross-examination concerned evidence that this investigating detective had secured of prior beatings of the wife by the husband.

The trial court sustained a state objection to such cross-examination. The objection was grounded on the failure to have shown an overt act prior to the cross-examination. However, the detective’s own prior testimony on direct, Tr. 76, as well as on cross, Tr. 78, revealed that at the time of her arrest she had complained of a beating by her husband. (Likewise, an earlier state witness had testified to similar effect. Tr. 53.)

The trial court may have been in error in concluding that no appreciable evidence of an overt act existed at the time so as to justify the cross-examination: Whether the complaints of the beatings contemporaneous with the killing and arrest were introduced as res gestae or as admissions of the accused, they nevertheless could reasonably be considered as appreciable evidence so as to justify the cross-examination sought. (On the other hand, the evidence arguably showed only the naked fact of a prior beating, not whether it qualified as an “overt act” by its nature.)

Nevertheless, in any event, no reversible error occurred.

In the first place, the trial court merely sustained the objection at the time, but it ordered that the deputy be held for later cross-examination as to the issue, once the overt act was established to the court’s satisfaction. Tr. 90. (Subsequently, when another state witness testified as to bruises on the accused’s cheek and a bloody mark on her arm, the trial court then overruled the state’s objection to similar cross-examination, because it was now satisfied that an overt act had been sufficiently shown. Tr. 100.) Detective Simons was never recalled by the defendant to complete his cross-examination, after the overt act was subsequently established to the court’s satisfaction.

In the second place, as part of her defense, the accused was permitted to develop fully by other witnesses the various acts of prior aggression against her by her deceased husband. These incidents were the subject of Detective Simon’s investigation of prior beatings as to which cross-examination was sought.

The ruling curtailing cross-examination, if erroneous, was not substantially prejudicial to the accused. We find no reversible merit to these bills.

Sentence

By Assignment 3, the defendant complains that the sentence of life imprisonment should have been imposed as without benefit of parole, probation, or suspension of sentence for a period of only twenty years (instead of forty years, as imposed).

The homicide occurred in September, 1976. At that time, Act 380 of 1975, effective September 12, 1975 (prior to the offense), had amended La.R.S. 14:30.1 to provide, upon conviction, for a sentence of life imprisonment without eligibility for parole, etc., for a period of forty years. Accordingly, the sentence as imposed was in accordance with the penal statute in effect at the time of the crime.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: SUMMERS, Justice. TATE, Justice PER CURIAM.

text:
    STATE of Louisiana v. Gustavo VINET.
    No. 59895.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Anthony R. Frey, III, Frey & Wheelahan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Gustavo Vinet was charged in a bill of information as amended with the aggravated battery of Dewey Zimmerman with an iron bar. La.Rev.Stat. 14:34. In a trial by a jury of six Vinet was found guilty and sentenced to imprisonment for five years at hard labor. Six assignments of error are urged on this appeal.

Assignment 3

While interrogating the prospective jurors on voir dire, the State’s attorney directed this question to the group:

“Would anyone on the jury panel require the State to go further than what the law requires, that is, require the State to prove its case more than just beyond a reasonable doubt? Would anybody require the State to go further than proving it beyond a reasonable doubt?
There’s a difference between a reasonable doubt and an absolute dead certainty. Now would anybody on the jury panel require the State to prove it to a certainty, you know, without any doubt, rather than beyond a reasonable doubt?”

At this point the prospective juror Sorbet said, “I feel like it would have to be a certainty.” Despite efforts by the trial judge, the State’s attorney and defense counsel to further explain and clarify the difference between “certainty” and “beyond a reasonable doubt,” the prospective juror persisted in her resolve. She said she could not find anyone guilty unless the proof of guilt was beyond any doubt, that is, to a certainty. Whereupon, the State challenged her for cause and the trial judge maintained the challenge, to which defense counsel objected and assigned the ruling as error.

Article 804 of the Code of Criminal Procedure requires the trial judge to charge the jury that: “It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.” And Section 271 of Title 15 of the Revised Statutes states: “The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt.”

The standard of proof required for conviction is therefore definite and fixed by statute. And Article 797 of the Code of Criminal Procedure announces that a jur- or’s inability to accept the law as given by the court is a ground for which the State may challenge the juror for cause.

Thus on the foregoing authority the ruling of the trial judge was correct. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971); State v. Scott, 243 La. 1, 141 So.2d 389 (1962). Furthermore, the defense has not shown that the State had exhausted its peremptory challenges and that the effect of this ruling is the exercise by the State of more peremptory challenges than it is entitled to by law. Unless this showing is made the defendant has no ground for complaint, even if the ruling allowing the State challenge was erroneous. La.Code Crim.Pro. art. 800; State v. Raymond, supra.

This assignment has no merit.

Assignment 4

The following exchange occurred during the jury selection process. While questioning the prospective juror Michaan, defense counsel asked:

“Mr. Frey:
If the State proves that he is probably guilty but they haven’t proved it beyond a reasonable doubt, just proved the probability what would be your verdict?
Mr. Cullen: [prosecutor]
Your Honor, I’m going to object to that question. It’s a question of degree.
The Court:
Sustain the objection.
Mr. Frey:
Note an objection to the Court’s ruling. No further questions.”

The defense contends that it was error for the trial judge to limit voir dire examination in this case. In doing so it is asserted defendant was denied the right to “full voir dire examination of prospective jurors” guaranteed by Section 17 of Article I of the Constitution.

Undoubtedly the defense is entitled to wide latitude in examining prospective jurors. This right is, however, to be exercised within the discretion of the trial judge who determines the scope of the examination under the prevailing facts and circumstances. La.Code Crim.Pro. art. 786. And when the question arises whether voir dire examination has been unduly restricted, the disallowance of a proper question is not automatically reversible. In evaluating the fairness of the ruling the entire examination must be considered. State v. Monroe, 329 So.2d 193 (La.1976); State v. Jones, 315 So.2d 650 (1975).

In the instant case, the defense complains that adequate inquiry into the difference between the standard of proof of “probability” and “reasonable doubt” was not allowed. The assertion is not supported by the record.

At the outset of the voir dire proceedings, the trial judge gave a standard instruction on the burden of proof in a criminal action. This instruction included the explicit distinction between probability of guilt and guilt beyond a reasonable doubt. The judge instructed: “. . . Even where the evidence demonstrates a probability of guilt yet if it does not establish it beyond a reasonable doubt, you must acquit the accused.” ;

While addressing the prospective jurors, defense counsel stated: “I suggest at this point that you will get your instructions from the Court at the end of these proceedings as to what reasonable doubt is.” Again, through a series of questions propounded to the panel of prospective jurors, defense counsel was afforded an opportunity to explore the concepts of reasonable doubt, moral certainty, and the presumption of innocence. And, at the close of the evidence, the trial judge again instructed the jury on presumption of innocence, the distinction between a “probability of guilt” and “guilt beyond a reasonable doubt.”

Thus, in the full context of the instructions given by the trial judge and the questions and statements of defense counsel, a full voir dire examination was allowed as contemplated by Section 17 of Article I of the Constitution. The constitutional guarantee of full voir dire examination does not require the court to tolerate prolonged, repetitious and unnecessary interrogation.

This assignment is without merit.

Assignment 5

During voir dire examination of the prospective juror Rougee she answered “Yes, I would” in response to defense counsel’s question, “Are you willing to give Gus [the defendant] the presumption of innocence that we discussed earlier today?”

Defense counsel then asked, “All the way up until the time, if ever, that the State proves its case beyond a reasonable doubt?”

To which she replied, “Well, if they can present enough facts to prove that he is guilty, I would go in that direction but until then I wouldn’t sway.”

“What if they prove that — that a crime had been committed but Gus wasn’t the one that did it, could you find him not guilty?”, defense counsel asked.

“Yes,” the prospective juror answered.

This response, and the denial of a defense challenge for cause, was error, the defense contends, because this prospective juror failed to comprehend the high standard of proof required of the State.

This prospective juror indicated no misunderstanding of the applicable burden of proof or any other ground for sustaining the defense challenge for cause. La.Code Crim.Pro. art. 797.

This assignment is without merit.

Assignment 6

Defense counsel objected to calling two medical doctors to testify on behalf of the State concerning the physical condition of the victim after the battery. It was the defense position that there was ample evidence of a battery and any further testimony dwelling upon the physical condition of the victim would only serve to prejudice and inflame the jury. The objection was denied.

The State called Dr. Nicholson, who, in testifying to the effect of the blow on the victim, said the blow was struck with vigor: “I mean whoever did this intended to kill someone.”

This statement, the defense argues, was irrelevant since it did not relate to the crime or to the assailant, and the prejudice clearly outweighed any probative value.

Relevant evidence is that which tends “to show the commission of the offense . ..” La.Rev.Stat. 15:441. Viewed in this light the doctor’s statement was relevant in that it tended to show the dangerous manner in which the weapon was wielded and the aggravated character of the battery. Relevancy must, moreover, be determined in the light of the entire case and the other evidence before the trial judge. His ruling is made in this context and isolated testimony does not necessarily present the entire basis for his ruling. Therefore his judgment should be upheld unless there is a showing that he has abused his discretion. State v. Williams, 347 So.2d 214 (La.1977). No such showing is made, and this assignment of error is without merit.

Assignment 7

Lloyd Henry, a patron at the Monaco Lounge where this battery occurred, was present when the altercation took place. He testified that he saw defendant Vinet strike the victim with what appeared to be an iron bar. Herman Pugh, who was standing across the street from the lounge at that time, testified that he saw someone come out of the bar and throw something under a car. Officer Goscienski testified that he found a tire iron the day of the disturbance in the parking area adjoining the lounge, about twenty feet from the front door. He was told that some of those present saw the defendant and his accomplices throw the iron bar under a car as they fled the scene. He retrieved the iron bar and retained custody of it until the day of the trial.

While there was conflicting evidence to the effect that the battery was accomplished with a crutch and not an iron bar, the evidence referred to above was sufficient to supply the connexity necessary to support the trial judge’s ruling admitting the iron bar into evidence.

The rule concerning the admission of objects has required a proper foundation to be laid, and that the objects be identified or authenticated as the objects they purport to be, and shown to be connected with the crime or with the accused. However, identification is not required to be absolute, certain or wholly unqualified. When there is some evidence for this purpose, objections as to its sufficiency go to the weight rather than the admissibility of the objects in question. State v. Kinchen, 342 So.2d 174 (La.1977); State v. Batiste, 318 So.2d 27 (La.1975); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972).

There is no merit to this assignment.

Assignment 8

The defense filed a motion for a new trial alleging that the verdict finding him guilty of aggravated battery was contrary to the law and the evidence in that Kevin Mabile committed the offense Gustave Vinet was charged with committing and he, Kevin Mabile, was willing to plead guilty to that charge. The motion was denied ex parte by the trial judge.

When defense counsel objected to the ex parte denial at a later hearing held contradictorily with the district attorney, he was allowed to proffer the testimony that would have been given at the hearing on the motion for a new trial.

The district attorney then stipulated that the defense could enter a polygraph report into evidence for the court to consider in connection with the motion for a new trial. A polygraph test had been run on Kevin Mabile by a polygraph examiner with the sheriffs office. The purpose of the test was to determine whether Kevin Mabile was telling the truth when he stated that he struck the victim Dewey Zimmerman with a tire tool. The examiner was of the opinion that Mabile was telling the truth when he said he struck Zimmerman with the tire tool and that he threw the tire tool under a car.

In addition, it was stipulated that an affidavit by Kevin Mabile could be admitted into evidence to the effect that he was the person who struck Dewey Zimmerman, that Gus Vinet did not, and that he, Mabile, was willing to enter a plea of guilty to that charge.

At the trial Kevin Mabile had testified for the defense. He said then exactly what he said in the affidavit, except that he did additionally attest in the affidavit that he would plead guilty to the battery of Zimmerman.

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. La.Code Crim.Pro. art. 851. Such a motion is not favored by the law.

Although Article 852 requires that a motion for a new trial “shall be tried contradictorily with the district attorney” the facts of this case do not indicate that the ex parte denial prejudiced the defendant.

Initially it should be observed that the requirement that the motion be tried contradictorily with the district attorney is obviously designed to afford the State an opportunity to contest the allegations of such a defense motion. In a case where the defense has moved for a new trial, therefore, only the State would be in a position to complain that the motion was not tried contradictorily with the district attorney. The defense under these circumstances has the advantage of a unilateral presentation.

Nevertheless, the defense was permitted to proffer all the evidence which it would have presented at the hearing contemplated by Article 852. In fact, as already mentioned, that evidence was presented at a later hearing held contradictorily with the district attorney to be considered in connection with the motion for a new trial, and the district attorney stipulated that the evidence would be considered.

Furthermore, there is no merit to the motion because the evidence proffered in the form of Mabile’s affidavit was merely a repetition of testimony he gave at the trial. All that was added was that he would plead guilty to the admission that he struck the blow against the victim. This repetitious testimony could not produce a different result in a new trial.

• Insofar as the polygraph test results which were proffered with the consent of the district attorney, that too could not change the result. Under repeated decisions of this Court the trial judge could not properly submit this evidence to the jury. To do so would usurp the jury’s prerogative on a question involving Mabile’s credibility, a question the jury had already resolved by its guilty verdict rejecting Mabile’s identical version of the happening. State v. Davis, 351 So.2d 771 (La.1977); State v. Schouest, 351 So.2d 462 (La.1977); State v. Weeks, 345 So.2d 26 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973); State v. Refuge, 270 So.2d 842 (1972); McCormick on Evidence, § 207 (2d ed. 1972); Annotation, Physiological or Psychological Truth and Deception Tests, 23 A.L.R.2d 1306. Substantively this motion for a new trial presents only questions of fact and we can only review the denial of such a motion for errors of law. La.Code Crim.Pro. art. 858.

This assignment has no merit.

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

TATE, J., concurs in part and dissents in part and assigns reasons.

DIXON, J., concurs, disagreeing with the treatment of Assignment # 8.

CALOGERO, J., dissents in part, concurs in part for reasons assigned by TATE, J.

DENNIS, J., concurs in part and dissents in part for reasons assigned by TATE, J.

TATE, Justice

(concurring in part, dissenting in part).

I concur in the affirmance of the conviction.

However, La.C.Cr.P. art. 852 mandates a contradictory hearing on a motion for a new trial. A trial court is not authorized to deny the rehearing upon the supposition that a contradictory hearing would not change its mind; the legislature has mandated that it hear argument and (if the allegations justify) evidence. ,

Therefore, we are in error in not requiring the contradictory hearing mandated by law, even aside from the circumstance that the evidence alleged, if believed, indicates a miscarriage of justice.

Accordingly, I dissent insofar as we did not reverse the sentence and remand this case for contradictory hearing upon the motion for a new trial.

PER CURIAM.

While we do not approve of the treatment of Assignment of Error No. 8, we consider that defendant’s motion for a new trial was properly considered by the trial judge in view of the proffer of evidence at a subsequent hearing held contradictorily with the district attorney.

Defendant’s application for rehearing is denied.

SUMMERS, J., dissents from this per cu-riam and adheres to the original opinion.


author: DIXON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Veronica BROWN.
    No. 59916.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, Douglas H. Allen, Asst. Dist. Attys., for plaintiff-ap-pellee.
   DIXON, Justice.

Veronica Brown was charged with possession of a controlled dangerous substance, to wit: phenmetrazine (also known as pre-ludin endurets), in violation of R.S. 40:968(C), and forgery of a medical prescription by issuance or transference of a forged writing — a medical prescription for phenmetrazine — purporting to have been written and signed by a licensed medical practitioner with intent to defraud and with knowledge that the prescription was forged, in violation of R.S. 14:72, paragraph 2.

At a jury trial on October 7,1976 defendant was found guilty as charged on both counts. She was sentenced on the possession charge to two years at hard labor and on the forgery charge to five years at hard labor, the sentences to run consecutively.

On appeal defendant assigns thirty-two errors as a basis for reversal of the conviction.

The facts surrounding commission of the crime follow.

On January 15, 1976 defendant Brown entered Briley’s Pharmacy in Winnfield, Louisiana, accompanied by Frank Williams, Jr. Due to an ongoing investigation in forged prescriptions of controlled dangerous substances, undercover narcotics agent Danny Moreau was secreted behind the pharmacist’s counter. Apparently, suspected prescriptions had been left at the pharmacy the day before and had been brought to Officer Moreau’s attention. In addition, Trooper Robert Rigby was stationed at the courthouse across the street while two other officers patrolled the area. The four officers were in contact with one another by walkie-talkie.

Defendant Brown requested a prescription in the name of Pinkie Jones, and Williams requested a prescription in the name of A. D. Ruth. Mr. Briley, the pharmacist, filled both prescriptions and handed them to Brown and Williams while alerting Mor-eau by hand signal that these were the questioned prescriptions. Ms. Brown stated that Williams would pay for the prescriptions, which he did.

Having observed the foregoing transaction, Moreau radioed Trooper Rigby that the suspects had just left the pharmacy. Rigby watched their movement to their car and alerted the other officers who stopped the car and arrested Brown, Williams and Billy Crishon, who was the driver of the vehicle. Pink pills were readily observable scattered on the front seat and floor boards in the front and back of the car, and were seized.

We find it necessary to reverse defendant’s conviction based upon Assignment of Error No. 32. Defendant contends that the trial court erred in denying a motion for a new trial based, among other things, upon the allegation that there was no evidence of the offense charged. We find that the record is devoid of proof of certain essential elements of the crimes with which defendant was charged.

R.S. 14:72, paragraph 2, the forgery statute which defendant is alleged to have violated, provides:

“Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.”

There was sufficient proof offered that the prescriptions were forged. Chief Raymond Fargo, from the Office of Narcotics and Drug Control of the State Division of Health, testified that the two names found on the prescriptions, L. L. Lurent and C. J. Balm, purporting to be signatures of a physician or dentist, did not appear on the official list of persons licensed to prescribe controlled dangerous substances. Nor were these names registered with the Louisiana Board of Medical Examiners to practice medicine. Two physicians, whose names were similar to those on the prescriptions, were called to testify; both Dr. C. C. Laurent, Jr. and Dr. G. C. Bahm, Jr. testified that the signatures were not their own, and that they had not written prescriptions for the patients named.

There is lacking, however, proof of an essential element of the offense of forgery — knowledge that the writings were forged. The only evidence offered in this regard was proof that the prescriptions were forged, that Ms. Brown, along with Frank Williams, Jr., appeared at the store to pick them up, and that upon Ms. Brown’s arrest the pills were found scattered throughout the car. As a matter of law, this evidence was insufficient to prove the “scienter” element of the crime of forgery. There is no evidence that defendant knew the prescriptions were forged.

The same result follows in regard to the possession offense. R.S. 40:968(C) provides:

“It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule III unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, or as provided in R.S. 40:978, while acting in the course of his professional practice or except as otherwise authorized by this part. . . . ”

(Phenmetrazine is listed in Schedule III, R.S. 40:964(A)(1) and, therefore, is a controlled dangerous substance). It is necessary for the alleged offender to have knowledge that the prescription is not valid in order to violate the statute.

Thus, we hold that proof of an essential element of both offenses was lacking— knowledge that the prescription was forged (on the forgery charge) and knowledge that the prescription was invalid (on the possession charge). Therefore, the motion for a new trial should have been granted.

For the reasons assigned, the convictions are reversed, the sentences set aside, and the case is remanded for a new trial.

SANDERS, C. J., dissents.

SUMMERS, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In criminal cases, the scope of our appellate review does not extend to an examination of the sufficiency of the evidence but rather is limited to the view of a properly raised allegation that there is no evidence of an essential element of the crime charged. I consider that there was “some evidence” that defendant knew that the prescription was forged and that she “knowingly and intentionally” possessed the controlled dangerous substance which was not obtained pursuant to a valid prescription. Intent, though a question of fact, need not be proven as a fact; it may be inferred from the circumstances of the transaction. La.R.S. 15:445. Accordingly, I respectfully dissent.

      . Defendant was also charged with violations of R.S. 40:971(B)(1)(b), acquiring or obtaining possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge, and R.S. 14:72, paragraph 1, the forging of a signature or part of a writing with intent to defraud. The State, however, elected not to try her on those counts. Also joined in the bill of information were Frank Spellman Williams, Jr. and Billy Crishon. Williams pled guilty to two counts of the bill of information, was sentenced by the court, and died before defendant Brown’s trial. Crishon was released on bond and thereafter jumped bail; he was at large at the time of defendant’s trial.

      . Defendant’s other assignments are without merit.
      No. 1 — The answers to the bill of particulars were sufficient. A bill of particulars may not be used to discover details of evidence with which the State expects to prove its case. State v. Walker, 344 So.2d 990 (La. 1977). In particular, defendant may not discover the names of State witnesses, witness statements, State v. Phillips, 343 So.2d 1047 (La. 1977), defendant’s own oral inculpatory statements, State v. Hatter, 338 So.2d 100 (La. 1976), or inculpatory statements of co-defendants, State v. Cardinale, 251 La. 827, 206 So.2d 510 (1968). No. 2 — -Defendant assigns error to denial of her motion to sever. Williams’ death before Ms. Brown’s trial, and Crishon’s absence, mooted the assignment. See footnote 1.
      No. 3 — Defendant contends the trial court erred in finding probable cause after a hearing on her application for a preliminary examination. This court has consistently held that the question of probable cause is moot once a defendant has been tried and convicted by a jury. State v. Walker, supra.
      No. 4 — Defendant contends evidence should have been suppressed since it was illegally obtained in that defendant was entrapped. The evidence clearly shows that no entrapment was involved. Furthermore, entrapment is a factual question for the jury’s determination. State v. Bates, 301 So.2d 619 (La.1974). Our appellate jurisdiction extends only to questions of law.
      Nos. 5, 6, 7 — Defendant objects to the admission of Officer Moreau’s testimony regarding what she said in the pharmacy since she was not afforded the C.Cr.P. 768 notice, and regarding what Williams said since that was hearsay. Those statements constituted part of the res gestae as “necessary incidents of the criminal act,” State v. Joseph, 341 So.2d 861, 867 (La. 1977); R.S. 15:448, and therefore were admissible into evidence. Article 768 has no application to res gestae statements. State v. Richmond, 278 So.2d 17 (La.1973).
      Nos. 8, 9 — Defendant contends photographs of the prescriptions should have been inadmissible in evidence. Introduction of a mechanical reproduction of an original is not reversible error unless it is shown that the contents of the purported copy do not accurately reflect the original. State v. Stuart, 344 So.2d 1006 (La. 1977).
      Nos. 10, 12 — Defendant objects to admission of a photograph of her, arguing that a proper foundation had not been laid and that she was not advised of her constitutional rights before the photograph was taken. Identification of demonstrative evidence can be made at trial, or by establishing the chain of custody. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). Officer Moreau identified the photograph as the one he took of defendant. There is no requirement that defendant be informed of her constitutional rights before a photograph is taken. Such evidence is non-testimonial in nature and does not violate defendant’s privilege against self-incrimination. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
      No. 11 — Defendant contends that a mistrial should have been granted based upon the following testimony of Officer Moreau regarding the photograph taken of Ms. Brown:
      “A. Yes sir, this is the picture that I took of the subject.
      “Q. Okay. Now, approximately when was that taken?
      “A. We . . . After all of the arrests were made . . . there were other arrests made that day and . . (Emphasis added). Clearly the comment made about “other arrests” was not in reference to arrests of defendant. Defendant was in no way prejudiced, therefore no mistrial was warranted. See C.Cr.P. 771, 775.
      Nos. 13, 14, 15, 16 — Defendant contends that questions asked of Drs. Laurent and Bahm, called to testify to prove forgery, were irrelevant. Their testimony was relevant;, it tended to show the commission of the offense. R.S. 15:441.
      No. 17 — There is no merit to defendant’s contention that a police officer’s testimony that defendant was informed of her Miranda rights by the standard form used by the sheriffs department was a comment on defendant’s failure to testify.
      Nos. 18, 24, 25, 26, 27, 28 — Defendant contends that the requisite foundation for introduction of the evidence seized, the two pharamaceutical bottles containing the phenmetrazine and the evidence envelope in which they were enclosed, was not made. We construe her argument to be based on an allegation of lack of probable cause for arrest. The evidence discloses that there was reasonable cause to make the war-rantless arrest. C.Cr.P. 213(3), and that the seizure of the evidence, which was in plain view, was valid.
      Nos. 19, 20, 21, 22, 23 — Defendant contends there was error in the admission of certain testimony while the State was laying its predicate for admission of seized evidence. She objects first to hearsay testimony regarding what one officer told another over the walkie-talkie while preparing to arrest defendant. This hearsay testimony, which was outside the presence of the jury, was admissible for purposes of determining probable cause. State v. Devenow, 253 La. 796, 220 So.2d 78 (1969). Next she objects to Trooper Rigby’s testimony that he knew the prescriptions were forged and that Williams had a past record as a drug user. This testimony was admissible for purposes of establishing probable cause for the arrest.
      No. 29 — Defendant contends the trial judge erred in denying her motion for a directed verdict. The amended version of C.Cr.P. 778 was effective on the date of trial. It provides that only in bench trials can a judge direct a verdict at the close of the State’s case.
      No. 30 — Defendant contends that a mistrial should have been granted when the State, in closing argument, made a reference to evidence that was not part of the record: -
      “ . . . The prescriptions were left the day before. Who called for the prescriptions? She called for Pinkie Jones. He called for the A. D. Ruth prescription. I suggest to you that these prescriptions got in the pharmacy some way. Mr. Briley didn’t take them in. None of the agents took them in. She and Mr. Williams took them in the day before and left them. .” (Emphasis added).
      In order to mandate a mistrial from improper closing argument, the court must be thoroughly convinced the jury was influenced by the remarks and that they contributed to the verdict. State v. Lockett, 332 So.2d 443 (La. 1976).
      No. 31 — Defendant contends her motion in arrest of judgment was improperly denied. Defendant is incorrect in her argument that phen-metrazine is not a controlled dangerous substance. It is specifically listed in Schedule III, R.S. 40:964(A)(1). Defendant also incorrectly argues that there was no evidence to show the offenses occurred in Winn Parish. Defendant is correct in her contention that the offenses were not proven; however, the proper vehicle to raise that objection is a motion for a new trial.


author: PER CURIAM.

text:
    STATE of Louisiana v. Kenneth PORTER.
    No. 59921.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
    Stephen E. Covell, Baton Rouge, for defendant-appellant.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Walter WILLIAMS.
    No. 59940.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Michael L. Hughes, Kilbourne & Dart, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eliza BRUMFIELD.
    No. 59951.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    John J. Dolan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed.

However, we note under the authority of La.C.Cr.P. art. 920(2) that the sentence imposed is illegal. Defendant was found guilty of second degree murder and sentenced to imprisonment at hard labor for life without benefit of parole. At the time the crime was committed (April 8, 1974), it was punishable by a term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for a period of twenty years. La.R.S. 14:30.1, as added by Acts 1973, No. 111, § 1. The sentence imposed herein renders defendant ineligible for parole for the rest of his natural life rather than for twenty years, as provided by statute. Accordingly, the sentence imposed is vacated and set aside and the matter is remanded to the district court for resentencing in accordance with law.


text:
    STATE of Louisiana v. Leo STEWART.
    No. 60030.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    William J. O’Hara, III, Supervising Atty., New Orleans, Gwendolyn Robein, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John L. A. Lenfant, IV, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Roy Milton SMITH.
    No. 60034.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    John C. Ford, Jackson, Smith & Ford, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Harold HAYES.
    No. 60038.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Rehearing Denied Dec. 14, 1977.
    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., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.. ■


text:
    STATE of Louisiana v. Walter L. REESE.
    No. 60050.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Michael E. Ponder, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Thomas Richard SANDERS.
    No. 60052.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Frank J. Saia, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leonard FANT.
    No. 60091.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    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., Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Otha I. RATLIFF.
    No. 60092.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Peter J. Compagno, George M. Leppert, 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.

Affirmed.


text:
    STATE of Louisiana v. Leon THOMAS.
    No. 60097.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    John H. Taylor, Taylor & Raggio, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lester CHAIRS.
    No. 60133.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Fred C. Jackson, St. Francisville, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Special Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. William REED.
    No. 60146.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    William H. Byrnes, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lionel JONES and William Tolliver.
    No. 60148.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    J. Daniel Rivette, Clement F. Perschall, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Roy A. GARLAND.
    No. 60150.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Lawrence J. Genin, Chauppette, Genin & Parent, Marrero, A. J. Boudreaux, Staff Appeals Atty., Indigent Defender Board, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Kenneth L. Sanders, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed. The post-conviction habeas corpus is not considered. See La.C.Cr.P. Art. 363.


text:
    STATE of Louisiana v. Verdia Lee CHILDS.
    No. 60174.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Robert E. Piper, Jr., Piper & Brown, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara 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. James Edward HILL, Jr.
    No. 60175.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    F. Marion Freeman, Jr., Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Bobby D. GLOVER and Leonard Turner.
    No. 60240.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Rehearing Denied Dec. 14, 1977.
    Tilden H. Greenbaum, III, 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., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Harold Lee JACKSON.
    No. 60242.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Jerry A. Kirby, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Stephanie W. Dawson, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Emanuel CALVIN.
    No. 60141.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Jesse L. Means, Jr., St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Special Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John DEFRANCES, Jeffrey Defrances, Allen Defrances, Kimberly Bishop, Lynn Lewis, Tonya Baker and Sue Gamble.
    No. 60575.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
    Amended Order Dec. 5, 1977.
   In re: John Defrances, et al. applying for writ of certiorari (review) prohibition and mandamus.

Writ denied as to Assignment No. 1. Writ granted as to Assignment No. 2. 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 Monty M. Wyche, Judge of the 26th Judicial District, Court for the Parish of Bossier, to transmit to the Supreme Court of Louisiana, on or before the 20th day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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

AMENDED ORDER

Writ denied as to Assignment No. Writ granted as to Assignment No. 2. 1.


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

text:
    STATE of Louisiana v. Emmit M. HUGHES and James F. Willeford.
    No. 61105.
    Supreme Court of Louisiana.
    Nov. 29, 1977.
   In re: Emmit M. Hughes and James F. Willeford, applying for supervisory writs.

Writ granted. Preliminary examination ordered prior to trial. Art. 1, Section 14, La. Constitution (1974).

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

SUMMERS, J.,

dissents. The order of the majority compels a vain and useless proceeding at a time when it will serve no purpose.

DIXON, J.,

dissents. A preliminary examination at this stage will serve no purpose since the ease is fixed for trial tomorrow.


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

text:
    STATE of Louisiana v. Roger D. PERKINS.
    No. 61108.
    Supreme Court of Louisiana.
    Dec. 1, 1977.
    Rehearing Denied Dec. 14, 1977.
   In re: Roger D. Perkins applying for supervisory writ of review, prohibition, mandamus and stay order.

Writ granted. The trial court is ordered to allow inspection and scientific testing by defendant of the evidence intended for use by the state as evidence at the trial under the court’s supervision, See L.C.Cr.P. art. 718.

SANDERS, C. J.,

dissents from the order issued but would order an evidentiary hearing to determine whether the quantity of the narcotic left is sufficient to permit further testing.

SUMMERS, J.,

dissents. I do not agree that the ruling of the trial judge is erroneous.

Rehearing denied;

SANDERS, C. J., and SUMMERS, J., were of the opinion that rehearing should be granted.


author: TATE, J.,

text:
    Robert SANDERS, John Cantry, Lawrence Hudson, Michael Conner and Joshua Berry v. Lev HALL, Jr. and New Orleans Public Service, Inc.
    No. 61002.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Robert Sanders, et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 350 So.2d 262.

Denied.

TATE, J.,

dissents. Although the majority of this Court apparently feels that the court of appeal properly applied Coco, the court of appeal apparently reduced the awards based on its record — deduction of exaggeration. I see no sound reason for a reviewing court to reach this conclusion in opposition to the trior of fact, simply because similar injuries with similar medical treatment were received in the same accident.


text:
    STATE of Louisiana v. Stephen Clifton BYERS.
    No. 60929.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Stephen F. Byers applying for writs of review and certiorari.

Granted. (Parish of Webster).

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 Louis H. Padgett, Jr., Judge of the 26th Judicial District, Court for the Parish of Webster, to transmit to the Supreme Court of Louisiana, on or before the 16th day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, 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. Frank VOELKER, III, et al.
    No. 61037.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Frank Voelker, III applying for writs of review, certiorari and stay order.

Granted. (Parish of Webster).

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 Monty M. Wyche, Judge of the 26th Judicial District, Court for the Parish of Webster, to transmit to the Supreme Court of Louisiana, on or before the 16th day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, 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. James Dewey CARR and John Quade.
    No. 61053.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: James Dewey Carr and John Quade applying for writs of certiorari, prohibition, mandamus and stay order.

Granted. (Parish of Webster).

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 Monty M. Wyche, Judge of the 26th Judicial District, Court for the Parish of Webster, to transmit to the Supreme Court of Louisiana, on or before the 16th day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, 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. Lavon J. Lee WOLFE.
    No. 60780.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Lavon J. “Lee” Wolfe applying for writ of certiorari.

Writ denied. Ruling of trial judge is correct. (Parish of St. Charles).


author: DIXON, J.,

text:
    STATE of Louisiana v. Louis J. CARMOUCHE.
    No. 60970.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Louis J. Carmouche, applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ denied. There is some evidence to support probable cause for the arrest. This Court does not weigh the sufficiency of the evidence.

DIXON, J.,

dissents. The attempted arrest by the officer was clearly unjustified.

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


author: TATE, J., DIXON, J.,

text:
    STATE of Louisiana v. Verdell FISHER and Clarence Williams.
    No. 61082.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Verdell Fisher and Clarence Williams, applying for writ of review.

Writ refused. No prejudice is shown.

TATE, J.,

concurring. The effect of the trial court’s ruling prohibiting cross examination was only to deny counsel the right to ask leading questions. A co-defendant should be permitted to cross-examine another defendant who takes the stand. However, since the defendants were represented by the same counsel (the root of the present difficulty) the trial judge properly refused to let counsel cross-examine one defendant on behalf of the other. Nevertheless, in the absence of showing that in fact there was a conflict in the position of the two defendants, and in the absence of showing that in the past the complaining co-defendant was deprived of exculpatory evidence by the ruling — I concur in the denial.

DIXON, J.,

concurs. The error occurred in the appointment of one lawyer to represent two defendants.


text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. STATE of Louisiana.
    No. 60615.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Quenton N. Brown applying for habeas corpus, 322 So.2d 211.

Denied; no error in ruling of trial judge. (Parish of St. Mary).

TATE, J.,

concurs. The evidentiary hearing and the trial record demonstrate that the complaints of ineffective assistance of counsel are without merit.


text:
    N. A. JOHANSEN v. PORT JEWELL, INC. and Edward J. Jewell. Alfred C. NOYES v. PORT JEWELL, INC. and Edward J. Jewell.
    No. 61004.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Edward Jewell and Associates, Inc., Edward J. Jewell and Bonnie C. Jewell, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 351 So.2d 184.

Not considered; the judgment complained of is final; there was no application for rehearing in the court of appeal.

MARCUS, J., recused, having acted on case in trial court.


text:
    Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
    No. 61011.
    Supreme Court of Louisiana.
    Dec. 5, 1977.
   In re: Travis R. Bohannon applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 350 So.2d 205.

Writ Denied In Part, Granted In Part. We find no error requiring review by this Court as to any assignment relating to the judgment in favor of the plaintiffs against the defendants cast; accordingly, writs are denied as to further review of this judgment, including its modification for limited remand by the Court of Appeal.

However, insofar as the applicants urge that erroneous rulings as to the “locality rule” prevented the defendants from securing a factual determination that the negligence of Dr. James Bozeman also contributed to the injury, we grant the writ to determine whether, for purposes of third-party demands, error was committed by the rulings complained of by Assignments 1, 2, 3 of Docket Nos. 60,992 and 61,008 and by Assignment 2 of Docket No. 61,011, which errors had the effect of depriving the defendants of evidence relevant to a determination of this doctor’s negligence and whether same was a contributory cause of decedent’s death.

The writs are denied as to all other assignments of error urged including the only assignments raised in # 60,993.

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:
    Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT AND INDEMNITY CO. et al.
    No. 60992.
    Supreme Court of Louisiana.
    Dec. 5, 1977.
   In re: Bentley Laboratories, Inc. and Gulf Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 350 So.2d 205.

Writ Denied In Part, Granted In Part. We find no error requiring review by this Court as to any assignment relating to the judgment in favor of the plaintiffs against the defendants cast; accordingly, writs are denied as to further review of this judgment, including its modification for limited remand by the Court of Appeal.

However, insofar as the applicants urge that erroneous rulings as to the “locality rule” prevented the defendants from securing a factual determination that the negligence of Dr. James Bozeman also contributed to the injury, we grant the writ to determine whether, for purposes of third-party demands, error was committed by the rulings complained of by Assignments 1, 2, 3, of Docket Nos. 60,992, and 61,008 and by Assignment 2 of Docket No. 61,011, which errors had the effect of depriving the defendants of evidence relevant to a determination of this doctor’s negligence and whether same was a contributory cause of decedent’s death.

The writs are denied as to all other assignments of error urged including the only assignments raised in # 60,993.

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


text:
    Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
    No. 60993.
    Supreme Court of Louisiana.
    Dec. 5, 1977.
   In re: Our Lady of Lourdes Hospital, Darrell Gregory and Hartford Accident & Indemnity Co. applying for writ of review, or certiorari, to the Court of Appeal, Third Circuit, Parish of Lafayette. 350 So.2d 205.

Writ Denied In Part, Granted In Part.

We find no error requiring review by this Court as to any assignment relating to the judgment in favor of the plaintiffs against the defendants cast; accordingly, writs are denied as to further review of this judgment, including its modification for limited remand by the Court of Appeal.

However, insofar as the applicants urge that erroneous rulings as to the “locality rule” prevented the defendants from securing a factual determination that the negligence of Dr. James Bozeman also contributed to the injury, we grant the writ to determine whether, for purposes of third-party demands, error was committed by the rulings complained of by Assignments 1, 2, 3 of Docket Nos. 60,992 and 61,008 and by Assignment 2 of Docket No. 61,011 which errors had the effect of depriving the defendants of evidence relevant to a determination of this doctor’s negligence and whether same was a contributory cause of decedent’s death.

The writs are denied as to all other assignments of error urged including the only assignments raised in # 60,993.