author: PER CURIAM. DIXON, Justice.

text:
    STATE of Louisiana v. Aubrey BERGERON.
    No. 60820.
    Supreme Court of Louisiana.
    May 31, 1978.
    On Rehearing April 9, 1979.

      John M. Lawrence, Orleans Indigent Defender Program, George M. Strickler, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

ON REHEARING

DIXON, Justice.

Aubrey Bergeron and Frederick Stanley were charged in the same information with simple burglary in violation of R.S. 14:62. On April 6, 1976, after trial by jury, both defendants were found guilty as charged. Thereafter, the trial court denied a motion for a new trial and sentenced Stanley to serve five years at hard labor in the custody of the Department of Corrections. Berger-on was adjudged a triple offender and sentenced to serve fifteen years at hard labor in the custody of the Department of Corrections. Both defendants appealed, but Stanley’s appeal was later dismissed at his own written request. Bergeron’s conviction and sentence were affirmed on May 31, 1978 by per curiam opinion. Subsequently, Berger-on applied for rehearing, which was granted.

Between 6:00 p.m. April 5 and 2:30 a.m. April 6,1975, a residence on Banks Street in New Orleans was burglarized. Just after midnight of that same evening, police officers stopped a vehicle in New Orleans for a traffic violation. The driver of that vehicle was Stanley, and the passenger was Berger-on. Stanley was issued traffic tickets for running a stop sign and having an obstructed rear windshield. (The trunk lid was open to accommodate a large console television). The car was impounded because it was not registered in either Bergeron or Stanley’s name, but neither Bergeron nor Stanley was arrested. However, when the impounded vehicle was inventoried, most of the items taken in the burglary on Banks Street were found, and the defendants were subsequently arrested and charged with simple burglary. R.S. 14:62.

On rehearing, the defense contends that the presumption that a defendant found in unexplained possession of property recently stolen in a burglary is the burglar was unconstitutionally applied at defendant’s trial to convict him of simple burglary without evidence on the essential elements of the crime. In effect, the defense argues that although the state proved that there was a burglary and that Bergeron was a passenger in a vehicle where stolen goods were found, there was no proof that Ber-geron made an unauthorized entry into the Banks Street dwelling with the intent to commit a felony or any theft therein.

At the time of defendant’s trial and before our recent decision in State v. Searle, 339 So.2d 1194 (La.1976) (on rehearing), this court had permitted the extension of the statutory presumption of R.S. 15:432 (that the person in the unexplained possession of property recently stolen is the thief) to apply to the crime of simple burglary. State v. McQueen, 278 So.2d 114 (La.1973); State v. Shelby, 215 La. 637, 41 So.2d 458 (1949); State v. Pace, 183 La. 838, 165 So. 6 (1935). However, in Searle this court held that the judicially created presumption that a defendant found in possession of property recently stolen in a burglary is presumed to have committed the burglary was “unconstitutional, unwise and must be overruled.” In so finding this court stated, at 339 So.2d 1202:

“It is now clear that the due process requirement of the federal constitution obliges the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that, accordingly, a state may not shift the burden of ultimate persuasion of an essential element of the crime charged to the defendant in a criminal case. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).”

See also, State v. Wingerter, 339 So.2d 1 (La.1976). We have applied Searle and Wingerter to reverse convictions when this judicially extended presumption was used in lieu of an essential element of the crime. See State v. McGhee, 350 So.2d 370 (La.1977); State v. Montoya, 340 So.2d 557 (La.1976).

In the instant ease, in its closing argument, the state communicated this presumption to the trier of fact:

“ . . . There’s no doubt that a burglary had been committed. Now, the key question in this case is did these two defendants do it? That’s the key question. And we have shown to you, beyond a reasonable doubt, that indeed they did do it.
Let’s go through the evidence on that key question. You remember that when Mr. Robinson questioned you here about your qualifications to be a juror, he said there’s a presumption in law that anyone in the unexplained possession of recently stolen goods is considered to be the burglar. That’s what these two defendants were. . . . these two defendants were stopped . . . driving along in a car which had all of those stolen goods which you saw in this picture. In other words, they were in the unexplained possession of recently stolen property. That’s a presumption in law which you all took an oath that you would uphold that presumption today. . . . The stuff has been taken from a home. The stuff is found in the possession of the two defendants. You remember that the officers were asked: Was there any explanation given as to how they got those goods? No explanation was given. Throughout this trial, no explanation has been given as to how these two defendants got those goods, and you know why? It’s as simple as common sense. It’s as simple as that presumption. Because if you’re in the possession of recently stolen goods, you’re the burglar, and a burglary has been committed, and there can be no explanation of how they came into those goods except for the fact that they broke into that home at 2654 Banks Street;

The trial judge also charged the jurors, in effect, that if the state proved beyond a reasonable doubt that the defendants were in the unexplained possession of recently burglarized property, the jury must presume that the defendants committed the burglary.

Although the record indicates that the state proved that a burglary occurred at the Banks Street dwelling, that Bergeron and Stanley were found in a vehicle with the recently stolen items from that burglary, and that no explanation was given for this possession, the record does not contain any evidence that Bergeron made the unauthorized entry into the dwelling with the intent to commit a theft or felony, nor that he stole the property. Instead, the state relied on the presumption to convict Bergeron of simple burglary, without proving all the essential elements of the crime.

Citing the original hearing of Searle, the state argues that during the instant trial this presumption was valid and approved by this court. The instant case was tried on April 6,1976, before our Searle decision was rendered on rehearing on October 6, 1976.

In State v. Searle we decided, as we had indicated in State v. Kaufman, 278 So.2d 86 (La.1973), that the broadening of the presumption of theft into a presumption of guilt in a trial for a greater crime, which includes the theft, violates due process by relieving the state of the necessity for producing any evidence of essential elements of the offense (to say nothing of the damage to the presumption of innocence and the burden of ultimate persuasion). In State v. Spears, 363 So.2d 479 (La.1978), we considered the rule of the Searle case so basically important to constitutional requirements for a just trial that it must at least be applied to cases not final when Searle was decided. (Spears had been tried on October 2, 1974).

The state argues, further, that the defense in the present case made no contemporaneous objections during the voir dire examination, closing arguments, or the trial court’s charges to the jury and, thus, the defense contention of total lack of evidence on all essential elements of the crime charged was waived because it was never properly presented to the trial court. Although defense did not contemporaneously object, a motion for a new trial was filed, and the trial court was afforded the opportunity to correct the defense complaint of no evidence by granting a new trial. In State v. Cobbs, 350 So.2d 168, 174 (La.1977), similar to the instant case, the defendant raised the same Searle issue by alleging that the state failed to offer evidence of every essential element of the crime of simple burglary and that the only evidence used to find defendant guilty of burglary was this presumption. In response, this court noted that only when the defendant has moved for a judgment of acquittal, C.Cr.P. 778, or for a new trial, C.Cr.P. 851, based on the lack of evidence of some essential element of the crime charged is a question of law presented for this court to review. See also, State v. Jamerson, 341 So.2d 1118 (La.1977); State v. Alexander, 339 So.2d 818 (La.1976). A motion for a new trial is proper to raise this issue of no evidence of an essential element and to preserve it for appellate review. State v. Jamerson, supra, at 1120.

In the instant case, Bergeron’s co-defendant, Stanley, filed a written motion for a new trial, styled State of Louisiana v. Frederick Stanley et al. The court minutes do not clearly reflect whether Bergeron was present at the hearing on this motion, but a lawyer for Bergeron appeared on the day the motion was tried and filed a motion to quash a multiple bill on behalf of Bergeron. However, C.Cr.P. 842 provides:

“If an objection has been made when more than one defendant is on trial, it shall be presumed, unless the contrary appears, that the objection has been made by all the defendants.”

See State v. Jackson, 358 So.2d 1263, 1265 (La.1978); State v. Trass, 347 So.2d 1156, 1158 (La.1977). By analogy, the provision of C.Cr.P. 842 should be extended to written motions by a co-defendant.

Finally, the state objects that the motion for a new trial does not specifically allege that there was no evidence of an essential element of the crime charged and consequently the issue is not before us. Although the exact words were not used, the trial court could not have misconstrued what the defense argument was in its motion for a new trial; the same contentions had been argued by the defense in its closing arguments. We find the issue was preserved by the motion for a new trial and is properly before us.

Finding that the state failed to present evidence on essential elements of the crime charged, we conclude that the defendant’s conviction must be reversed. Moreover, the United States Supreme Court has held that the double jeopardy clause of the Fifth Amendment (which is applicable through the Fourteenth Amendment to state criminal trials, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)) precludes a second trial once the reviewing court has found a total absence of evidence as to an essential element of the crime charged. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see also, State v. Thompson, 366 So.2d 1291 (La.1978) and State v. Liggett, 363 So.2d 1184 (La.1978). Accordingly, the defendant cannot be tried again for this offense.

For these reasons, defendant’s conviction and sentence are reversed and set aside and he is ordered discharged.

      . In Wingerter, supra, 339 So.2d at 3, we reasoned:
      “For the reasons this day assigned in State v. Searle, 339 So.2d 1194 (La.1976), the assistant district attorney’s remarks and the jury instructions not only exceeded that authorized by statute but also were unconstitutional in that they required the jury to draw an inference, i. e., that the defendants committed all essential elements of the crime of burglary, which reasonable minds could not infer beyond a reasonable doubt solely from the defendants’ unexplained possession of property stolen in the burglary. . A presumption or inference against the defendant arising out of the exclusive and unexplained possession of recently stolen property, even if properly established, cannot shift the ultimate burden of persuasion upon an essential element of the crime to the defendant. La.Const.1974, Art. 1, §§ 2, 13, 16; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).”

      . Concerning this presumption and the essential elements of burglary, we noted in Searle:

      “ . .In order to prove the crime of burglary the State is required to prove beyond a reasonable doubt that the culprit made an unauthorized entry of a structure with the intent to commit a theft or a felony. See La.R.S. 14:60, 14:62. Thus, the essential question presented is whether or not reasonable minds could, after finding beyond a reasonable doubt from the evidence that a person was in the possession of recently burglarized property, infer in the absence of any other evidence that beyond a reasonable doubt that person made an unauthorized entry of the structure from which the property was taken with an intention to commit a theft or felony. In the absence of a demonstration by the prosecution with empirical evidence that the presumption is permissible, . . . the question must be answered in the negative. Aside from the obvious possibility that the person in possession of the property may have received it from a third person, either with or without knowledge it had been stolen, there is the additional possibility that, if the same person made an entry of the structure, he did not do so without authorization, and finally there is the possibility, albeit slight, that if he made an unauthorized entry he did not have the intent to commit a theft or felony when he entered. . . ” 339 So.2d at 1206.

      . In Cobbs, supra, although the Searle contention was not properly raised because the defendant did not move for either relief, we also noted that the state had offered some evidence of every essential element of the crime because the defendant’s confession to the burglary was properly admitted into evidence.

      . The motion for a new trial alleged in relevant part:
      “The verdict is contrary to the law [and] the evidence [in] that the legal proposition espoused by the State that the person in the unexplained possession of recently stolen property is presumed to be the burglar is invalid, incorrect and incongruous with the law.”

      . In closing argument the defense argued that the state had not proved beyond a reasonable doubt every fact necessary to constitute the crime of simple burglary and that there was no evidence of an essential element of the crime. The author of the motion for a new trial argued:
      “Simple burglary is the unauthorized entering of any dwelling. Have they proved to you any evidence whatsoever which would place Mr. Stanley in that house some time from the time of 6 o’clock in the evening until the time . time they were stopped . . .? Where was Mr. Stanley during that period of time? We do now know. It is not incumbent upon the defense, in a criminal trial, to produce evidence to you which would explain to you where Mr. Stanley has been. We merely — the State has the burden of proof. In shouldering this burden of proof, they must prove to you beyond any reasonable doubt, that is, a doubt with a reason, that Mr. Stanley unauthorizedly entered the premises on Banks Street. What shred of evidence do we have? . . . ”
      Bergeron’s counsel also argued no evidence of the essential element in her closing argument: “I agree with counsel for the State that a burglary has been committed. There is absolutely no doubt about it. I have no reason to doubt Mr. Clark that his home was broken into, but I cannot see for the life of me where this man (indicating Mr. Bergeron) did it. I cannot see for the life of me where he had no authorization to enter, where he broke the lock, where he committed a theft therein. . . . ”

      .Because we find merit in this first assignment of error, we need not discuss defense argument that this presumption created an unconstitutional inference because the jury was not adequately instructed that the defendant need not testify to the circumstances of his possession of the items any more than in the instance of any other circumstantial evidence of guilt, State v. Coleman, 358 So.2d 289 (La.1978); State v. Muse, 363 So.2d 462 (La.1978). We also pre-termit discussion of defense contention that Bergeron was illegally sentenced as a multiple offender because the state did not submit sufficient proof to comply with R.S. 15:529.1.


source: Caselaw Access Project

author:
BLANCHE, Justice.
     DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Maurice WELSH and Sandra Smith.
    No. 62907.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

    Dissenting Opinion June 26, 1979.
    William Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Sheila C. Myers, Asst. Dist. Atty., for plaintiff-relator.
    George C. Ehmig, Mark N. Caracci, Gret-na, for defendants-respondents.

       Dennis, J., would grant a rehearing.

   BLANCHE, Justice.

Respondents-defendants, Maurice Welsh, Jr., and Sandra Smith were arrested and charged with six counts of possession of controlled dangerous substances in violation of LSA-R.S. 40:966. (Defendants were charged with possession of LSD, ethchlor-rynol, methylphenidate, amphetamines, die-thylproprion and diazepam.) Counsel for defendants filed a motion to suppress evidence seized from defendants’ apartment on the grounds that no probable cause existed for the issuance of the warrant. The district court sustained the motion without assigning written reasons. Upon application by the State, this Court granted a writ of certiorari to consider the ruling of the trial court. 362 So.2d 1388 (La.1978).

At 1:00 A.M. on February 17, 1978, Rebecca Lodice visited an apartment shared by Maurice Welsh, an officer with the New Orleans Police Department, and Sandra Smith, both defendants herein. While at the apartment, she smoked a marijuana cigarette given to her by Smith. Ms. Lodice observed that the marijuana came from a container on the coffee table in the apartment. Other drugs were also offered Ms. Lodice, one of which was identified to her as “acid.”

Ms. Lodice reported this incident to another officer in the district where Welsh was assigned. She was advised that she should report the occurrence to the members of the Internal Affairs Division of the New Orleans Police Department, which she did on February 21, 1978.

Upon receiving the information provided from Ms. Lodice, Agents John Johnson and John Dupre sought and obtained a search warrant based upon their affidavit which reads as follows:

“Miss. Rebecca Lodice, W/F, 20 years, appeared in the office of the Internal Affairs Division of the New Orleans Police Department, located at 715 So. Broad Avenue, Room 519 on Tuesday, February 21, 1978 and reported the following:
“1. That she was invited to 511 Esplanade Avenue Apartment ‘E’ on Friday, February 17, 1978 by Maurice Welsh and Sandy Smith.
“2. She arrived at that location at approximately 1:00 A.M. on the date of Friday, February 17,1978 and was admitted into the apartment by Maurice Welsh and Sandy Smith.
“3. Between the hours of 1:00 A.M. and 4:00 A.M. on this date, Friday, February 17, 1978, she was offered and she accepted a marijuana cigarette given to her by Sandy Smith in the presence of Maurice Welsh. She consumed approximately one half of this cigarette in the presence of Maurice Welsh and Sandy Smith. It is noted that Rebecca Lodice is familiar with marijuana, therefore is sure this was a marijuana cigarette she smoked.
“4. Rebecca Lodice observed that this marijuana did not come off the person’s [sic] of Sandy Smith and Maurice Welsh but came out of a container located on a coffee table within the apartment.
“5. Soon there after [sic] Sandy Smith went into the kitchen of the stated apartment and returned with several red capsules and several white capsules which she identified to Miss. Lodice as being narcotic drugs and asked her (Miss. Lod-ice) if she wanted one. Miss. Lodice refused to take any of these drugs.
“6. Miss. Lodice also stated that while she was seated on the couch in the apartment, Maurice Welsh, displayed to her a piece of tape having five, small, pink dots affixed to it and Maurice Welsh told her (Miss. Lodice) the dots were, ‘Acid’. The undersigned agent and Miss. Lodice are familiar with drug terms and know that the term ‘Acid’ is used to denote L.S.D. “7. Miss. Lodice stated the apartment in question belongs to Sandy Smith, however, Maurice Welsh lives at the apartment with her.
“8. On Tuesday, February 21,1978 Miss. Lodice accompined [sic] the undersigned agent to . 511 Esplanade Avenue and pointed out to the agent Apartment ‘E’, stating this was the apartment she was present in on Friday, February 17, 1978 when this illegal activity involving narcotics took place. The undersigned agent observed the address of . 511 Esplanade Avenue Apartment ‘E’ to be within the confines of Orleans Parish. Miss Lodice pointed out a 1974 Dodge Dart, two door, color gold, with a trailer hitch, bearing 1977 Louisiana license # 309B546 which she positively identified as belonging to Maurice Welsh. A later check of the license with the State revealed it was registered to Maurice Welsh. This vehicle was observed parked in the parking lot of the apartment complex located at 511 Esplanade Avenue.
“9. Miss. Lodice is available and ready to testify in Criminal District Court against these two subjects, Maurice Welsh and Sandy Smith.
“10. For the reasons stated above, the undersigned agents believes [sic] that there is probable cause to believe that illegal narctoic [sic] activity is taking place at . 511 Esplanade Avenue Apartment ‘E’, and respectfully request that this search warrant be granted.”

The defense challenged the warrant on three basic grounds:

(1) There was nothing contained in the affidavit attesting to the credibility of the informant or the reliability of the information furnished by her.
(2) The information supplied by the informant was “stale” since five days had elapsed between the time the informant made her alleged observations and the time the search warrant was executed.
(3) The warrant was materially altered prior to its execution without judicial authority.

Since the trial judge has not favored us with written reasons which would reflect the basis for his sustaining the motion to suppress, we will examine all three grounds advanced by the defense which they claim required the district court to find the warrant invalid.

CREDIBILITY OF THE INFORMER

A search warrant may only be issued on the basis of probable cause. This Court has repeatedly held that “probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed.” State v. Richards, 357 So.2d 1128, 1130 (La.1978); State v. Smith, 350 So.2d 1178 (La.1977).

If an essential element in establishing probable cause required by Article 162 of the Louisiana Code of Criminal Procedure is hearsay information, then the magistrate must follow the “two-pronged” test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in determining whether or not probable cause existed. The two requirements of the Aguilar test are: (1) the affiant must state the basis for his belief that the information is trustworthy, and (2) the affidavit must also state the underlying circumstances which show that the informant was in a position to observe facts as reported.

Thus, under Aguilar, the affidavit must demonstrate that the informant is credible and that the information is reliable, i. e., that the informant was in a position to know whát he or she reported.

There is no question in this case that the second requirement is met since the affidavit reflects that Ms. Lodice’s knowledge of the existence and location of the drugs was based upon her own personal observation. In a similar case, this Court held:

“The reliability of the information reported is sufficiently established by the informant’s direct personal observation and actual participation in the sale of marijuana.” (State v. Mena, 344 So.2d 357, 358 [La.1976])

While defendants’ claim that the affidavit does not sufficiently establish the credibility of the informant presents a more interesting question, it is also without merit. Relator urges this Court to hold that where the informant is named in the affidavit, the first requirement of Aguilar v. Texas does not apply. However, we find it unnecessary to decide this question since we hold the affidavit sets forth sufficient facts to establish the credibility of the informant under this Court’s recent decision in State v. Mena, supra.

In Mena, the affidavit set forth the following facts: The police arrested Jimmy Samson and found him in possession of one pound of marijuana. Samson told the police he had bought the substance from a man named “Jose” and showed the police the residence where the purchase was made. Police investigation revealed that Jose Mena resided at the apartment pointed out by Samson. Samson also identified Mena from a picture shown to him by police as the man who sold him the marijuana. In addition, Samson told police that he had seen numerous other packages like the one he had purchased at Mena’s residence when he was there.

In Mena, we held that the affidavit satisfied the first prong of the Aguilar test:

“The credibility of the informant is established by two factors. First, the informant’s report that Jose lived at the specified address was corroborated by the affiant’s independent investigation. Second, the informant’s admissions, included in the affidavit, that he purchased marijuana from defendant Jose Mena, as well as his photographic identification of Jose Mena, constituted declarations against penal interest because they supplied evidence against him of guilty knowledge, an essential element of the crime of the possession of a controlled dangerous substance. State v. Knight, 298 So.2d 726 (La.1974) and cases cited therein.” (State v. Mena, 344 So.2d at 358)

Two of the three elements which existed in Men a to demonstrate the credibility of the known informant are present in the instant case, plus an additional element which we feel is even more valuable than the photographic identification in Men a.

First, Ms. Lodice’s statement that she participated in smoking marijuana with the defendants constituted a declaration against penal interest. The United States Supreme Court in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), a case involving a confidential informant who had made inculpatory statements to police upon which a search warrant was based, reasoned:

“Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.” (403 U.S. at 583, 91 S.Ct. at 2082)

We believe the informant’s credibility was enhanced by her admission to having participated in the smoking of marijuana at the defendants’ apartment.

Second, as in Mena, the informant’s statements were partly corroborated by independent investigation by the police. Investigation established that a car located in front of the apartment where the alleged activities occurred, and which Ms. Lodice identified as belonging to the defendant Welsh, was, in fact, registered to Welsh. The fact that part of her story was true tended to make her other allegations more credible.

The third factor which tends to establish the credibility of the informant is the fact that the affidavit stated that the informant “is available and ready to testify in Criminal District Court against these two subjects, Maurice Welsh and Sandy Smith.”

This Court has never before addressed this point. The Supreme Court of Virginia in McNeill v. Commonwealth, 213 Va. 200, 191 S.E.2d 1 (1972), rendered this perceptive analysis when faced with similar language in an affidavit seeking a search warrant:

“[T]here was added to the statement concerning reliability a most unusual allegation, one we have not seen in all the search warrant cases we have examined. That allegation was that the informer was ‘willing to testify in court.’
“This added allegation served two purposes. First, it established that the informer was an ordinary citizen discharging his public duty to assist the police, rather than a paid informer or one seeking favor for himself. Second, it gave weight to the statement about the proven reliability of the informer and entitled the magistrate to credit his story.
“It is true, as the defendant argues, that the allegation that the informer was ‘willing to testify in court’ did not bind him to testify. But the average citizen knows that when he does appear in court he must take an oath to tell the truth, he faces a charge of perjury for testifying falsely, and he may be confronted with prior inconsistent statements when cross-examined. With this beforehand knowledge, when one expresses a willingness to testify in court and stand by what he has told the police, an aura of credibility is added to his story which establishes its probability.” (191 S.E.2d at 3)

We find the above reasoning transcends state jurisdictional lines and adopt it as our own.

We conclude, therefore, that the affidavit more than adequately established the credibility of the informant. In doing so, we are mindful that common sense must guide magistrates and courts in testing search warrants, State v. Mena, supra at 358, and that “[a] policeman’s affidavit ‘should not be judged as an entry in an essay contest’ . . . but, rather, must be judged by the facts it contains,” United States v. Harris, 403 U.S. at 579, 91 S.Ct. at 2080. We believe the fact that the affidavit disclosed the identity of the informant, that it contained declarations against the informant’s penal interest, that some factual allegations were independently corroborated by police investigation, and that the informant unconditionally expressed a willingness to testify in criminal court to the facts she alleged, are sufficient to justify a reasonable person to conclude the informant was credible in the case before us.

STALENESS

The search warrant in the instant case was obtained four days after Ms. Lodice made the observations reported in the affidavit.

In State v. Thompson, 354 So.2d 513 (La.1978), this Court held:

“A search warrant will withstand an attack of ‘staleness’ if the facts contained in the affidavit have not become so attenuated with the passage of time so as to render those supporting facts nonexistent.” (354 So.2d at 514-515)

In State v. Brawley, 347 So.2d 238 (La.1977), an affidavit stated that the defendant had a pistol and a typewriter in his possession, both of which were stolen property. The warrant was issued more than one month after the defendant had come into possession of these items. This Court held that the affidavit was not stale because the items were such that the defendant probably would keep them for personal use and would not have disposed of them prior to the issuance of the search warrant. The search warrant, therefore, was not “stale.”

In the present case, Lodice stated that defendants showed her several red and several white capsules, as well as five LSD tablets and an undetermined amount of marijuana in a container. Because of the amount and types of drugs that the informant observed, there is a likelihood that some sort of controlled substance was still present four days later. See State v. Weinberg, 364 So.2d 964 (La.1978), No. 62,434; State v. Chaffin, 324 So.2d 369 (La.1975) (50-day lapse upheld); State v. Flood, 301 So.2d 637 (La.1974) (83-day lapse upheld).

We, therefore, conclude that the information upon which the warrant was issued was not stale at the time the warrant was issued.

ALTERATION

The defendants alleged at the trial level that the police officers changed the street number of the address on the warrant from “611” to “511” after the magistrate had signed the warrant and that the warrant was, therefore, invalid. It is not clear whether defendants have abandoned this claim before this Court, so we shall deal with it briefly.

Defendants’ contention is wholly without merit since the testimony of Agent Johnson and that of the Honorable Gerald Hansen, the magistrate who signed the warrant, established that the change was judicially approved. After the warrant was signed, the agents discovered the address error. The incorrect address was “whited out” and the correct one typed in over it. The warrant was then taken back to Judge Hansen and signed again.

DECREE

For the above reasons, the ruling of the district court in sustaining the motion to suppress is reversed and this case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The affidavit did not provide sufficient underlying circumstances from which the magistrate reasonably could have concluded that the informant was credible. It is doubtful that Ms. Lodice understood her statement to be against her penal interest. She volunteered information to the police about drugs in the defendant’s apartment. Her admission that she smoked one marijuana cigarette is not inculpatory to the same degree as the admission in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In Harris, an unidentified informant revealed that over the past two years he had purchased illicit whiskey numerous times. The Supreme Court held that these statements were against the informant’s penal interest because he had admitted major elements of a crime. However, the majority cautioned that “admissions of crimes do not always lend credibility to contemporaneous or later accusations of another.”

Observations made by Justice Harlan in his dissenting opinion in Harris are particularly pertinent to the instant case:

«* * * [Wjhere the declarant is also a police informant it seems at least as plausible to assume, without further enlightenment either as to the Government’s general practice or as to the particular facts of this case that the declar-ant-confidant at least believed he would receive absolution from prosecution for his confessed crime in return for his statement. (This, of course, would not be an objection where the declarant is not also the informant. See Spinelli [v. United States], supra, 393 U.S. 410 at 425, 89 S.Ct. 584 at 593-594, [21 L.Ed.2d 637] (White, J., concurring).) Thus, some showing that the informant did not possess illusions of immunity might well be essential.” 403 U.S. at 595, 91 S.Ct. at 2087, 29 L.Ed.2d at 740.

Under the facts of this case, it appears very likely that the declarant-confidant believed she would receive absolution from prosecution for her confessed crime in return for her statement and testimony. Thus the main underlying circumstance supporting the magistrate’s conclusion that she was credible, i. e., that her statement was trustworthy because it was self-incriminating, was illusory. Without it the other circumstances clearly do not establish her credibility.

       Judge Pike Hall, Jr., Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.


author: CALOGERO, Justice. TATE, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. John Norman KENT.
    No. 63723.
    Supreme Court of Louisiana.
    May 21, 1979.
    Dissenting Opinion Aug. 29, 1979.

      Charles R. Moore, Edward J. Walters, Jr., Moore & Walters, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Premila Burns Chumbley, Asst. Dist. Atty., for plaintiff-relator.
   CALOGERO, Justice.

We granted the state’s writ application seeking review of the trial court’s determination that defendant’s confessions are inadmissible for all purposes. 366 So.2d 907 (La.1979). The statements were obtained in contravention of the Dino requirement that makes consultation with an attorney or an adult, informed of the juvenile’s rights, a prerequisite to a valid waiver of the juvenile’s Miranda rights. The state contended in its application that although the confessions are not admissible in chief because of Dino’s applicability, they should be ruled admissible for impeachment purposes, for the same reasons and to the same extent that confessions obtained in contravention of the holding in Miranda but otherwise voluntarily given have been held admissible by the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

In its present posture we are required in this case to resolve two issues. We must determine whether the confessions to murder given by this fifteen year old defendant without the prior consultation mandated by Dino were otherwise freely and voluntarily given. We must also decide whether the confessions rendered inadmissible for purposes of introduction in the state’s case in chief by lack of adherence to the standards of Dino are nonetheless admissible for impeachment purposes.

Initially a hearing was held on a motion to suppress the defendant’s confessions wherein defendant urged that his confessions were coerced and that he had not made an intelligent waiver of his rights. The ruling on the motion, made prior to this Court’s decision in Dino, determined that the statements were freely and voluntarily made. When Kent sought by writ application to this Court our review of that admissibility ruling, we did not review the volun-tariness issue; in view of the fact that Kent had not been counselled by a parent or attorney we decided to remand for reconsideration of the admissibility determination in light of our holding in Dino. At the second hearing the trial judge demonstrated that he construed this Court’s remand for further proceedings in the light of Dino as mandating suppression of the use of Kent’s statements for any purpose, including impeachment. He ruled accordingly.

We here review both of these rulings of the trial court. We first direct our attention to the determination that Kent’s statements were freely and voluntarily given. As a prerequisite to admission of a confession or inculpatory statement, the state must discharge its burden of proving affirmatively and beyond a reasonable doubt that the statement was freely and voluntarily made and was not the result of threats, coercion or promises. C.Cr.P. art. 703; R.S. 15:451; State v. Jennings, 367 So.2d 357 (La.1979). Apart from the additional requirements imposed by Dino, the voluntariness of a juvenile’s confession or inculpatory statement, as in the case of an adult’s statements, is to be judged by a totality of the circumstances test. See State v. Volk, 369 So.2d 128 (La.1979). The court determining admissibility must consider whether the defendant “was . aware not only of his rights, but also of the consequences of foregoing them, . knew he was faced with a phase of the adversary system, and . . . was aware that he was not in the presence of persons acting solely in his interest.” State in the Interest of Dino, 359 So.2d 586, 591 (La.1978); accord State v. Volk, supra.

The statements at issue were taken from a fifteen year old with a tenth grade education who had previously had encounters with law enforcement and had received Miranda warnings at least two or three times before. The defendant was arrested by officers who informed him of his Miranda rights while transporting him to the police station but who otherwise did not communicate with him. Detectives to whom Kent was turned over by the arresting officers again apprised him of his Miranda rights and informed him of the charges against him. Minutes thereafter, Kent signed a rights waiver form and made a statement, which the interrogating officers taped. Having procured the statement, the officers left the interrogation room. By this time, attempts to contact Kent’s mother had been successful, and she appeared at the station house. According to the testimony of the officer who procured defendant’s first statement and to whom defendant later asked to speak (then further incriminating himself in connection with the crimes charged), Kent spoke to his mother between the time of giving the first (taped) statement and the second (oral) statement, and then revealed his desire to tell the “whole truth”, thereafter making a full confession. All officers testifying at the hearing on the motion to suppress affirmatively stated that no force was used to procure the statements and that Kent was neither physically nor mentally abused.

Kent himself testified at the hearing and recounted that neither arresting officer apprised him of his Miranda rights; He averred that the arresting officers smashed his foot by grinding the high heel of the shoe of one of the officers into his foot and related that one of the officers struck him on the leg twice with a blackjack. The defendant testified that in contrast with the treatment of these two officers, Officer Breaux, to whom both statements were given, would enter the room when the arresting officers would leave it, would be nice to him and would assure him that he could leave if he would talk. Kent claimed that he was crying as he began to give the taped statement. However, he conceded on cross-examination that the tape played at the suppression hearing did not support this claim. The defendant admitted that when he spoke to his mother immediately after the mistreatment allegedly took place he did not show her any of the signs of the abuse he claims to have suffered.

In determining at the conclusion of the initial hearing that the state had carried its burden of proof on the motion to suppress, the trial judge believed that the prosecution’s witnesses established that the statements were free and voluntary, not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. This credibility determination, though not controlling on appeal, is entitled to great weight, since the trial judge had the opportunity to view and listen to the various witnesses. State v. Siegel, 366 So.2d 1358 (La.1978). After careful consideration and weighing of all of the testimony given at the suppression hearing, we cannot say that the trial judge erred in finding that the state had met its burden.

Having found the statements, although given in contravention of the Dino requirements, otherwise free and voluntary, we now turn our attention to the issue raised in the application of the state which we granted, i. e., should the state be permitted to use for impeachment purposes these voluntary statements of a juvenile uncounseled by an adult informed of the juvenile’s rights and interested in his welfare?

In State v. Collum, 365 So.2d 1272 (La.1978), faced with the issue of whether the Dino requirements would be given retroactive effect, we applied the threshold question required by State v. King, 347 So.2d 1108 (La.1977), testing whether the Dino rule goes to the very integrity of the fact-finding process (and thus renders prospective application insufficient). Determining that the Dino requirements merely assure a juvenile’s intelligent understanding of his Fifth Amendment privilege against self-incrimination and the consequences of waiving it, and deciding that the voluntariness standard and Miranda rule previously applicable essentially served the same purpose, the Court decided against giving Dino retroactive effect. The Dino requirements were thus decreed to be applicable only to cases in which the trial commences after the date the Dino decision became final, June 15, 1978.

The Court’s determination that a failure to meet the Dino requirements does not impair the integrity of the fact-finding process prompts the conclusion that a statement otherwise voluntarily given should be available for the state’s use as impeaching evidence in the event the defendant should testify. Cf. Harris v. New York, supra. Harris held that statements obtained in violation of Miranda’s requirement that a suspect be apprised of his constitutional privilege against self-incrimination and his right to counsel could nonetheless be used to impeach the defendant’s contradictory trial testimony. Opining that sufficient deterrence results when evidence obtained in violation of Miranda is rendered inadmissible to the state in its case in chief, the United States Supreme Court pronounced that the “shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” 401 U.S. at 226, 91 S.Ct. at 646.

The reasoning behind the rule of Harris, supra, a rule thereafter approved by this Court (See e. g., State v. Williams, 271 So.2d 857 [La.1973]),- compels us to reach a harmonious result in the instant case. We therefore hold that in cases to which the Dino requirements are applicable, cases tried after June 15, 1978 (as the instant case will be), evidence of the defendant’s statements will be available for use by the prosecution in impeaching a testifying defendant, provided that the statements, as in this case, are affirmatively shown to have been free and voluntary.

Decree

The ruling of the trial court insofar as it decrees defendant’s confessions inadmissible for impeachment purposes is reversed.

REVERSED IN PART.

TATE, J., concurs and assigns reasons.

DENNIS, J., dissents and will assign reasons.

TATE, Justice,

concurring.

The trial court correctly applied the rationale of Dino that the confession of a juvenile, in police custody and without the advice of parents or counsel,, is inherently not a free and uncoerced (and therefore reliable) confession. In the subsequent Col-lum decision a majority of this court (over the dissent of three members, including myself) held that the Dino rule was not designed to insure the integrity of the fact-finding process. Therefore, although the trial judge in my view (and that of two other members of this court) correctly applied Dino, under the subsequently-decided Colium view, the present confession is not inherently unreliable and may be used for impeachment purposes.

Feeling bound by Colium until it is overruled, I concur in the majority decree.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The standards enunciated in State in the Interest of Dino, 359 So.2d 586 (La.1978), to insure voluntariness and trustworthiness go to the integrity of the fact finding process and should be applied retroactively. See my dissenting opinion in State v. Collum, 365 So.2d 1272 (La.1978). When so applied, it is clear that the statements made by defendant Kent in the present case were not shown to be the product of a rational intellect and a free will and therefore should have been inadmissible at trial for any purpose. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

      . State in the Interest of Dino, 359 So.2d 586 (La.1978).

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

      . In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the United States Supreme Court decreed that the landmark decisions of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) would affect only those cases in which the trial began after the effective dates of the decisions.


author: MARCUS, Justice.

text:
    In the Matter of the Interdiction of Mrs. Mary Josie Reno FABRE.
    Nos. 63057, 63317.
    Supreme Court of Louisiana.
    May 21, 1979.

      Margaret A. Coon, Baton Rouge, for applicant, Mrs. Mary Josie Reno Fabre in both cases.
    Ralph Brewer, Michael W. McKay, Baton Route, for respondent, Anthony Reno in both cases.
    Kevin Robshaw, Dudley D. Flanders, Flanders & Flanders, New Orleans, for ami-cus curiae The Mental Health Assoc, of La.
    Ronald M. Soskin, South Bend, Ind., National Center for Law and the Handicapped, amicus curiae.
   MARCUS, Justice.

Anthony Reno instituted this action to interdict his sister, Mary Josie Reno Fabre, alleging that, because of her infirmities, she is incapable of taking care of her person and administering her estate. He further sought to be appointed her curator. After expiration of the delay for answering, the court appointed an attorney to represent defendant. In her answer, defendant generally denied the allegations of plaintiff’s petition. After trial on the merits, the district court rendered judgment in favor of plaintiff and against defendant decreeing a judgment of interdiction. The judgment also awarded defendant’s court-appointed attorney $1,500 attorney fees and $420 expenses in connection with the litigation, a total of $1,920 to be taxed as costs against the estate of defendant. Subsequently, a hearing was held to determine who would be appointed curator for defendant. Judgment was rendered in favor of plaintiff appointing him curator. Defendant took separate appeals from the judgment of interdiction and the judgment appointing plaintiff curator. The court of appeal affirmed both judgments in separate opinions. Defendant made separate applications to this court. We granted both applications to consider the correctness of the decisions rendered by the court of appeal.

La.Civil Code art. 389 provides that “[n]o person above the age of majority, who is subject to an habitual state of imbecility, insanity or madness, shall be allowed to take care of his own person and administer his estate, . . . .” La.Civil Code art. 422 further provides that “[n]ot only lunatics and idiots are liable to be .interdicted, but likewise all persons who, owing to any infirmity, are incapable of taking care of their persons and administering their estates, . . . Clearly, as prerequisite to the rendition of a judgment of interdiction, it must be shown that the person to be interdicted is mentally incapable of administering his or her estate and unable to take care of his or her person. Interdiction of Scurto, 188 La. 459, 177 So. 573 (1937). In addition, some courts have also required a showing that an actual necessity for the interdiction exists. In re Corbin, 187 La. 968, 175 So. 636 (1937); Landry v. Landry, 171 La. 280, 130 So. 866 (1930). Moreover, in determining whether a person is capable of taking care of her person, this court has held that “[a]n adult woman whose capacity is limited to the mere dressing and undressing of herself, to making up beds and sweeping floors, is not, in legal intendment, such a person as may be held capable of caring for her person. That the inmates of insane asylums perform acts of that character daily is of such common knowledge that the court may take judicial notice of the fact.” In re Corbin, supra; Landry v. Landry, supra. Finally, mental infirmities are of infinite degree, and to what extent the mind must be affected to warrant a judgment of interdiction is largely dependent upon the facts of each case. Interdiction of Scurto, supra.

Hence, we must review the record in this case to determine whether defendant, because of her infirmities, is incapable of taking care of her person and administering her affairs and if so whether an actual necessity for interdiction exists. If our findings are in the affirmative, we must then decide whether plaintiff was properly appointed curator for defendant.

The facts are generally not in dispute. Defendant is a female who was thirty-one years of age at the time of trial. She was married twice, with the first marriage ending in divorce. Her second marriage was to Antoine (Anthony) Olix Fabre whom she married on July 20, 1971. During this marriage, she bore a son, Charles Anthony Fabre, who resided with defendant and her husband in a home owned by the latter. Mr. Fabre was employed with the sanitation department of the City-Parish (East Baton Rouge) for some twenty-five years before he died on August 11, 1977. He left defendant with an estate valued at about $47,000. The child of the marriage, who was two and a half years old at the time of trial, has continued to live with defendant in the family home. This action for interdiction was instituted on September 6, 1977.

Dr. Francisco A. Silva, court-appointed psychiatrist, testified that he examined defendant on one occasion at his office. He referred her to Mr. Dan Lichtenstein, a clinical psychologist, for psychological testing. Mr. Lichtenstein also testified at trial. Both experts agreed that defendant is moderately mentally retarded. They also concluded that, although defendant has some limited ability to make judgments, she generally is unable to abstract or reason constructively when left to her own devices. While they considered defendant capable of attending to the daily needs of herself and her child, they felt that she cannot, due to her mental deficiencies, handle money and thus requires close guidance in dealing with financial affairs. Moreover, defendant can neither read nor write. Both experts replied affirmatively when asked whether it was their opinion that defendant daily assumes more responsibility than an inmate in an asylum.

Dr. Linda M. Floyd, a clinical psychologist, also testified. She had interviewed defendant at defendant’s home. Her testimony reveals essentially that she concurred with the findings of Dr. Silva and Mr. Lichtenstein, except that she felt on the basis of her interview with defendant and her observations of defendant in her home that defendant has more ability to abstract and reason constructively than those experts had indicated. She agreed that defendant is incapable of managing her money, but considered that she can function effectively in her domestic environment. Dr. Floyd testified that defendant is aware that there are unusual situations with which she cannot cope and for that reason keeps a list of telephone numbers in a book, including those of the fire and police departments, which she knows how to dial. Dr. Floyd stated that she considered that defendant has the ability to care for herself and to continue to live in her home. When asked specifically whether she felt that defendant manages more responsibility than an inmate in an asylum, Dr. Floyd responded: “I believe so . the things that Mary does for herself, cooking for herself and taking care of her child, are far more than people are required to do in institutions.

Other witnesses testified, including plaintiff and his wife, another brother of plaintiff and defendant, and the pediatrician who treats defendant’s son. Additionally, the deposition of Mrs. Myrtle Chaney, a neighbor of defendant, was introduced in evidence. The testimony of these witnesses was to the effect that defendant is an immaculate housekeeper, who prepares meals, launders her clothes and those of her son, and shops for groceries. In addition, she goes unattended to the post office and to the drugstore to have prescriptions filled. She maintains her yard herself, mows the lawn'and changes the oil and gas in the lawnmower. She enjoys television and relates to the plot. Furthermore, she goes around the neighborhood unattended and enjoys social interaction with various of her neighbors and a boyfriend. Defendant is a loving and caring mother, who keeps her child well-fed, clean and appropriately attired. She discerns when her child is in need of medical treatment and on those occasions calls the pediatrician and takes the child to his office, sometimes by taxi. The pediatrician testified that he had cared for defendant’s child since his birth and during this period had seen defendant and her child on many occasions. He stated that defendant is aware when her child needs medical care and follows treatment prescribed by him. When asked to describe defendant’s behavior as he observed it in his office, he responded: “Nothing extraordinary, just a caring mother. I never did other than — well, I never did really separate her from any of the other mothers that I saw, you know, she was caring, concerned, brought the problem to the point, let me know exactly what she was worried about, was able to respond to my questions, just normal, normal as can be.”

After review of the record, we conclude that defendant, because of her mental deficiencies, is incapable of handling her financial affairs. All the evidence supports this conclusion. However, the evidence is equally clear that defendant is not only capable of caring for herself but also for her child within the confines of her daily environment. Indeed, she has done so for many years without mishap. Her capacities in this regard are not limited to mere dressing and undressing herself and to making up beds and sweeping floors. Rather, defendant performs daily acts far beyond the capacities of inmates in an asylum. She maintains her house and- yard unsupervised and without assistance. Moreover, she has demonstrated that she is fully capable of caring for her child, carrying out effectively such duties as clothing and preparing meals for the child and taking him to the doctor when necessary.

In sum, we find that, although the record supports the conclusion that defendant, because of her infirmities, is incapable of administering her estate, it does not support the finding that she is unable to care for her person, one of the prerequisites to the rendition of a judgment of interdiction. Having concluded that one of the prerequisites for interdiction is not present, a judgment of interdiction is not warranted. Hence, we need not consider whether an actual necessity for interdiction exists. Nor do we reach the issue of whether plaintiff was properly appointed curator for defendant.

The Mental Health Association of Louisiana and the National Center for Law and the Handicapped Advocate for the Developmentally Disabled have filed amici curiae briefs in this matter. They argue, inter alia, that the Louisiana law of interdiction is deficient in that it makes no provision for a “limited” interdiction which would not unduly affect the personal liberties of the interdict. The National Center cites to seventeen states which have provided by statute for limited guardianships of some form. Although such a remedy may well be a better solution in a situation where, as in the instant case, a person is incapable of handling his or her estate without assistance but is capable of caring for his or her person, it is beyond the scope of this court’s authority to so provide. Under the present law of this state, provision is made only for a complete interdiction over the person and property of the interdict where the code prerequisites are met. Any provision for a type of limited interdiction addresses itself to the legislature.

In her application to this court contesting the appeals court’s affirmance of the judgment of interdiction, court-appointed attorney for defendant also assigns as error that the district court’s award for attorney fees and expenses taxed against defendant’s estate is inadequate and should be increased to include compensation for services performed on appeal. The appeals court declined to review this issue, noting that it should have been raised by defendant’s attorney on her own separate appeal. We do not agree.

The trial court awarded court-appointed attorney for defendant the sum of $1,920 representing $1,500 for attorney fees and $420 for expenses in connection with the litigation. We find no abuse of the trial judge’s discretion in this award. However, court-appointed attorney performed additional services in this matter on the appellate level for which she is entitled to be compensated. Accordingly, we find that defense counsel is entitled to an additional award of $500 for these services. See Light v. Crowson Well Services, Inc., 313 So.2d 803 (La.1975).

La.Code Civ.P. art. 4551 provides that the cost of an interdiction proceeding shall be paid from the estate of the defendant if a judgment of interdiction is rendered. However, if judgment is rendered in favor of the defendant, the court in its discretion may tax the costs, or any part thereof, against any party.

Finding that a judgment of interdiction was warranted, the trial court properly taxed all costs of the interdiction proceeding, including attorney fees and expenses of the court-appointed attorney, against the estate of defendant. However, we have found otherwise, i. e., judgment in favor of defendant. Therefore, the court in its discretion may tax the costs, or any part thereof, against any party. We are convinced from the record that plaintiff, defendant’s brother, was in good faith in instituting the instant interdiction proceeding. Under the circumstances, we consider an equitable solution regarding the payment of costs of these proceedings is to tax the attorney fees and expenses of the court-appointed attorney against defendant and all other costs of the proceedings against plaintiff.

DECREE

For the reasons assigned, the judgments of the court of appeal affirming the judgments in favor of plaintiff and against defendant, decreeing a judgment of interdiction and the appointment of plaintiff as curator for defendant are reversed. Instead, judgment is rendered herein in favor of defendant, Mrs. Mary Josie Reno Fabre, and against plaintiff, Anthony Reno, dismissing his suit. Costs of attorney fees ($2,000) and expenses ($420) of court-appointed attorney, Ms. Margaret A. Coon, are taxed as against defendant; all other costs of these proceedings are taxed against plaintiff.

SUMMERS, C. J., agrees with the opinion, except that he concurs on the issue of costs and attorney’s fees.

      . 361 So.2d 1315 (La.App. 1st Cir. 1978), affirmance of judgment of interdiction; (La.App. 1st Cir. 1978), affirmance of the judgment appointing plaintiff curator for defendant.

      . 366 So.2d 558 (La. 1979), grant in connection with application to review affirmance of judgment of interdiction; 366 So.2d 559 (La. 1979), grant in connection with application to review affirmance of judgment appointing plaintiff curator for defendant.

      . La.Code Civ.P. art. 4550 dealing with the appointment of a curator for the person interdicted after the judgment of interdiction provides in pertinent part: “Article 4069 governs the appointment of a separate curator of the property and person.” See Comment (d) to article 4550 which states that article 4069 “to which reference is made in this article, provides for the appointment of a bank as separate tutor of the property. The principles involved apply also to curatorship of interdicts.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Dwayne WILLIS.
    No. 64258.
    Supreme Court of Louisiana.
    May 30, 1979.

      Ronald J. Gillen, Dalton, Gillen & Roni-ger, Jefferson, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James Maxwell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
   PER CURIAM.

The issue presented by this case is whether a jury, once retired to deliberate its verdict in a felony prosecution, may be released unsequestered over the weekend before a verdict has been reached. We find that such a procedure violates the clear terms of Louisiana Code of Criminal Procedure Article 791, and requires the reversal of defendant’s conviction.

Defendant was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. His trial before a twelve person jury commenced on February 8, 1979, and on the afternoon of Friday, February 9, the jury was charged and retired to deliberate its verdict. When. no decision was forthcoming by 6:00 p. m. that evening, the trial court interrupted the deliberations and allowed the jurors to return to their homes for the weekend. Trial resumed at 9:30 a. m. on Monday morning, resulting in a guilty verdict at 11:05 a. m. Defendant filed a motion in arrest of judgment grounded upon the separation of the jury, and after it was denied, applied to this Court for supervisory writs, which we granted.

La.C.Cr.P. Art. 791 provides:

A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
In capital cases, after each juror is sworn he shall be sequestered.
In noncapital cases, the jury shall be sequestered after the court’s charge, and may be sequestered at any time upon order of the court, (emphasis supplied)

Noncompliance with the mandatory provisions of the article is an error patent on the fact of the record, reviewable even without formal objection or motion. La.C.Cr.P. Art. 920(2); State v. Parker, 372 So.2d 1037 (La.1979); State v. Martin, 329 So.2d 688 (La.1976).

The purposes of sequestration are to insulate the jurors from outside influence, or the possibility thereof, and to insure that their verdict will be based upon the evidence developed at trial. State v. Parker, supra; State v. Marchand, 362 So.2d 1090 (La.1978). So strictly is the prophylactic rule enforced that upon separation of the jury a presumption of prejudice arises which may only be rebutted if it affirmatively appears that no prejudice to the accused could have resulted. See, State v. Parker, supra; State v. Marchand, supra. The extended separation of the entire jury in the present case exposed it to improper influences which can only be a subject of speculation; as there is no indication that defendant was not prejudiced thereby, we find that reversible error occurred.

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

      . By the terms of the article, sequestration of the jury is mandatory in capital cases and following the court’s charge in noncapital cases.


author: SUMMERS, C. J.,

text:
    In re Christopher O. DAVIS.
    No. 64877.
    Supreme Court of Louisiana.
    June 21, 1979.
   In Re: Christopher 0. Davis, applying for Application to Take the Louisiana State Bar Examination.

Granted; pretermitting the question of the meaning of the words “resident alien” in our rules, the Bar Association is ordered to permit the applicant to take the bar examination in July, 1979.

SUMMERS, C. J.,

dissents and would adhere to the provisions of Article IV, Section 7(b-c) of the Articles of Incorporation of the Louisiana State Bar Association. This action of this court has the effect of a blatant disregard of the rules regulating admission to the Bar. This case-by-case action of the Court serves to minimize the effect of the rules governing admission to the bar.


text:
    STATE of Louisiana v. Dudley Patrick BEAVERS.
    No. 64738.
    Supreme Court of Louisiana.
    May 24, 1979.
   In re State of Louisiana, through the District Attorney, Ossie Brown, applying for supervisory writs and stay order. East Baton Rouge Parish. No. 2-73-3303.

Writ denied. See State v. Buggage, 351 So.2d 95 (La.1977) and State v. Rounsavall, 337 So.2d 190 (La.1976).


text:
    The PEOPLES BANK AND TRUST COMPANY, NATCHITOCHES, LOUISIANA v. Lonette C. HARPER, d/b/a Harper’s Steak House, et al.
    No. 64629.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re The Peoples Bank and Trust Co., Natchitoches, Louisiana, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 370 So.2d 1291.

Denied.


text:
    STATE of Louisiana v. Arthur C. BLUE.
    No. 64782.
    Supreme Court of Louisiana.
    June 8, 1979.
   In re Arthur C. Blue, applying for writs of certiorari, review, prohibition, mandamus and for a stay order. Jefferson Parish. Nos. 78,2548 and 78,2549.

Denied. Relator has an adequate remedy by review in the event of conviction.


text:
    CARGILL, INCORPORATED and Applachian Insurance Co. v. CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 64825.
    Supreme Court of Louisiana.
    June 8, 1979.
   In re Cementation Company of America, Inc., applying for supervisory writs of review, certiorari and prohibition and for a stay order. Parish of St. Mary No. 47,058.

Granted, Deposition by Cargill of these witnesses is stayed pending a decision on whether Cementation is entitled to the statements of these witnesses.

DIXON, J., dissents and would not delay the case.


text:
    STATE of Louisiana ex rel. Grover BINDOM v. Hayden J. DEES, Warden.
    No. 64688.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Grover Bindom, applying for writ of certiorari. Parish of East Baton Rouge. Nos. 1-77-181, 182.

Denied.

CALOGERO, J., would grant evidentiary hearing.

BLANCHE, J., recused.


text:
    STATE of Louisiana v. Paul Gregory TROQUILLE.
    No. 64697.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Paul Gregory Troquille, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Sabine. No. 26,050.

Writ denied.


text:
    Delores A. BOUDREAUX v. Mike C. FORTE and Westbank Ford, Inc.
    No. 64703.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Delores A. Boudreaux, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension. No. 12,563.

Writ denied.


author: TATE, CALOGERO and DENNIS, JJ.,

text:
    STATE of Louisiana v. David C. BAILEY.
    No. 64707.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re David C. Bailey, applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 3210-79.

Denied.

TATE, CALOGERO and DENNIS, JJ.,

dissent. An indigent defendant charged with first degree murder cannot be denied the means of proving a defense, if any, of insanity. The constitutional right of indigents to be assured effective representation of counsel requires the state to afford this defendant’s counsel the relief desired. The state risks reversal of any conviction obtained by its denial to the defendant of this constitutional right.


text:
    Warren GAMBINO v. Charles FOTI.
    No. 64713.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Warren Gambino, applying for writ of certiorari, review or habeas corpus. Orleans Parish. Criminal Court No. 261-217.

Writ denied.

DIXON, CALOGERO, and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Edward JOHNSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64717.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Edward Johnson, applying for writ of certiorari, prohibition, mandamus or ha-beas corpus. Parish of West Feliciana... No. 6594-A.

Writ denied.


text:
    STATE of Louisiana v. Leroy MADISON.
    No. 64718.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Leroy Madison, applying for writ of mandamus. Parish of Terrebonne. Nos. 58,348 and 65,489.

Writ denied.


text:
    STATE of Louisiana ex rel. James M. GRANGER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64725.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re James M. Granger, applying for writs of certiorari, mandamus, habeas corpus or any and all remedial writs. Tangi-pahoa Parish. No. 26-503.

Denied.


text:
    STATE of Louisiana v. Leo F. BARRIENTOS.
    No. 64726.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Leo F. Barrientos, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 341796. First Parish Court.

Writ denied.


text:
    STATE of Louisiana v. David T. UNDERWOOD, III.
    No. 64746.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re David T. UNDERWOOD, III, applying for motion for extension of return date for application for supervisory writs and stay order. Parish of Jefferson. No. 79-745.

Denied. Moot.


text:
    STATE of Louisiana v. Oscar GOMEZ et al.
    No. 64833.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Oscar Gomez et al., applying for supervisory writs. Parish of Vermilion. No. 21727.

Writ denied, in view of the fact that hearing on this matter has been set for June 15th.


text:
    CARGILL, INCORPORATED and Applachian Insurance Co. v. CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 64825.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Cargill, Incorporated, applying for motion for order allowing depositions. St. Mary Parish. No. 47,058.

Granted. Upon relator furnishing a copy of the statement of Mr. Dieter Szameitat on or before 5 p. m. Monday June 11, 1979, to Cementation Company of America, Inc., et al., it is ordered that the deposition of Mr. Dieter Szameitat be taken by relator at a time and place on June 12, 1979, fixed by notice to Cementation if the notice is furnished at the time a copy of Szameitat’s statement is delivered on June 11, 1979.


text:
    STATE of Louisiana ex rel. Leon WILLIAMS v. Frank BLACKBURN, Warden.
    No. 64550.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Leon Williams, applying for writ of habeas corpus. Parish of Bossier. No. 53,-299.

Writ granted. On the allegations in the petition, the relator is entitled to an eviden-tiary hearing to determine whether he requested that an appeal be taken by his appointed counsel, or whether he affirmatively waived his right to appeal. The other allegations are without merit.


text:
    STATE of Louisiana ex rel. Darrell KING v. Honorable Daniel KIMBALL, Judge.
    No. 64727.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Darrell King, applying for writ of mandamus, Parish of Iberville.

Writ granted. It is ordered that trial judge furnish relator with transcript of Boykinization entered at time of guilty plea (October 25, 1973).


text:
    STATE of Louisiana ex rel. David A. BALLARD v. Oliver P. SCHULINGKAMP, Judge, Section F, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 64729.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re David A. Ballard, applying for writ of mandamus, Orleans Parish.

Writ granted. Trial judge is ordered to furnish relator a transcript of his guilty plea.


text:
    STATE of Louisiana v. Charles E. WHITTINGTON, II.
    No. 63429.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Charles E.-Whittington, II, applying for motion for re-hearing. Lafayette Parish. Nos. 41,166, 41,514, 42,031.

Motion denied.


text:
    STATE of Louisiana ex rel. Ervin CROSBY v. Warden, Frank BLACKBURN.
    No. 64426.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Ervin Crosby, applying for remedial writs. Parish of Jackson. No. 17,976.

Writ not considered. On basis of information received from clerk of district court, relator has not first applied to district court for relief.

DIXON, J., would deny.


text:
    STATE of Louisiana ex rel. Billy Ray WASHINGTON v. Frank C. BLACKBURN, Warden.
    No. 64743.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Billy Ray Washington, applying for writ of mandamus. Parish of Caddo.

Not considered. Relator requested that application be dismissed.


text:
    STATE of Louisiana ex rel. Talmadge SEYMOUR v. Hon. Frank SHEA, Judge, Criminal District Court.
    No. 63820.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Talmadge Seymour, applying for writ of mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Graham NEILL and Michael Neill.
    No. 64316.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Graham Neill and Michael Neill, applying for writ of certiorari, (review) and stay order. Parish of Lafourche. Nos. 88793 through 88796.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Keith CORNELL v. Hayden J. DEES, Warden.
    No. 64481.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Keith Cornell, applying for writ of mandamus. Parish of Orleans.

Writ denied. Relator’s application is moot. The Department of Corrections has correctly recomputed relator’s good time in accordance with law.


text:
    STATE of Louisiana ex rel. Oscar Stevens GOINS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64544.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Oscar Stevens Goins, applying for remedial writs. Parish of Calcasieu. No. 7518-77.

Denied.


text:
    STATE of Louisiana ex rel. James E. WILLIAMS v. The Honorable Frank J. SHEA, Section “G”, Criminal District Court, Parish of Orleans, New Orleans, Louisiana.
    No. 64554.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re James E. Williams, applying for writ of mandamus. Orleans Parish No. 235-114.

Writ denied. Appeal pending. Trial transcript available to defense counsel.


text:
    STATE FARM FIRE AND CASUALTY COMPANY v. ELDER LUMBER COMPANY et al.
    No. 64638.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re State Farm Fire and Casualty Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. No. 6894.

Writ denied.


text:
    STATE of Louisiana v. Melvin BUJOL.
    No. 64645.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Melvin Bujol, applying for remedial writ. Parish of Orleans. No. 255-381.

Writ denied. Motion was considered on appeal.


text:
    STATE of Louisiana ex rel. Robert LAGARDE, Jr. v. Superintendent, Larry E. ROBERTS.
    No. 64646.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Robert Lagarde, Jr., applying for writ of habeas corpus. Parish of East Baton Rouge.

Writ denied, the applicant has been transferred to Louisiana Training Institute.


text:
    Earlean McGUFFEE nee Thompson v. Oma Cary McGUFFEE. Oma Cary McGUFFEE v. Earlean Thompson McGUFFEE.
    No. 64648.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Oma Cary McGuffee, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caldwell. Nos. 11,715 and 12,261.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    Jack J. CRISTINA, Jr. v. Linwood TAYLOR et al.
    No. 64650.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Bailey Powell and Petroleum Services, Inc., applying for writ of certiorari, First Circuit Court of Appeal, No. 12,503. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. John R. JONES.
    No. 64651.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re John R. Jones, applying for writ of mandamus, prohibition and stay order. Parish of St. Tammany. No. 41872.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Gary J. FORET v. Frank BLACKBURN, Warden.
    No. 64653.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Gary J. Foret, applying for remedial writ. Parish of Jefferson. No. 75-1889.

Denied.


text:
    Ronald G. CIRCELLO v. Beverly Beal CIRCELLO.
    No. 64672.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Ronald G. Circello, applying for writ of certiorari, First Circuit Court of Appeal. No. 12,452. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Irvin R. BOWEN.
    No. 64711.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Irvin R. Bowen, applying for supervisory writs and stay order. Parish of Orleans. No. 264-010.

Writ granted.

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

It is ordered that a writ issue herein, and that the Honorable Charles Ward, Judge, and the Criminal District Court for the Parish of Orleans transmit to the Supreme Court of Louisiana on or before the 25th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    Malcolm W. HUMPHREYS v. STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General and Charles W. Tapp, etc., et al.
    No. 64681.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Malcolm W. Humphreys, applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 369 So.2d 250.

Granted.

It is ordered that the writ of review issue, that the Court of Appeal send up the record in duplicate of the case, and that counsel for all parties be notified.


text:
    Earl John OLIVIER v. Donald DOGA (Louis B. Viviano, Intervenor).
    No. 64532.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Louis B. Viviano, applying for writ of certiorari, Third Circuit Court of Appeal. Parish of St. Landry. 368 So.2d 467.

Granted.

It is ordered that the writ of review issue, that the Court of Appeal send up the record in duplicate of the case, and that counsel for all parties be notified.


text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Donald J. DANIELS.
    No. 64696.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re General Motors Acceptance Corporation, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 369 So.2d 1169.

Writ granted.

It is ordered that the writ of review issue, that the Court of Appeal send up the record in duplicate of the case, and that counsel for all parties be notified.


text:
    STATE of Louisiana v. Salvatore A. BATTAGLIA and Jack Reynier.
    No. 64817.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re State of Louisiana, through the District Attorney, John M. Mamoulides, applying for writs of certiorari, prohibition, mandamus and stay order. Jefferson Parish. No. 75-1086.

Granted.

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

It is ordered that a writ issue herein, and that the Honorable Floyd Newlin, Judge, and the Twenty-Fourth Judicial District Court for the Parish of Jefferson transmit to the Supreme Court of Louisiana on or before the 25th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana v. John STORMS.
    No. 64722.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re John Storms, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 79,940.

Writ granted. It is ordered that arraignment entered in this matter be vacated and set aside. See La.Code of Criminal Procedure, article 642.


text:
    STATE of Louisiana v. Jeffrey Wayne BELL.
    No. 64574.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Jeffrey Wayne Bell, applying for writs of review and stay order. Parish of Caddo. No. 109,450.

Writ granted.

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

It is ordered that a writ issue herein, and that the Honorable Paul G. Lynch, Judge, and the First Judicial District Court for the Parish of Caddo transmit to the Supreme Court of Louisiana on or before the 25th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    STATE of Louisiana v. Horace HICKS.
    No. 64637.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for remedial writs. Orleans Parish. No. 269-082.

Writ granted.

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

It is ordered that a writ issue herein, and that the Honorable Jerome M. Winsberg, Judge, and the Criminal District Court for the Parish of Orleans transmit to the Supreme Court of Louisiana on or before the 25th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the realtor should be granted.


text:
    STATE of Louisiana v. Michael Lovell ALEXANDER.
    No. 64664.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Michael Lovell Alexander, applying for writs of certiorari. Parish of Ouachita. No. 38060.

Granted.

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

It is ordered that a writ issue herein, and that the Honorable Fred Fudickar, Jr., Judge, and the Fourth Judicial District Court for the Parish of Ouachita transmit to the Supreme Court of Louisiana on or before the 25th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


text:
    William C. GARRETT et al. v. Anna ERNEST, Wife of/and Gilbert Ernest and many others.
    No. 64634.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re William C. Garrett, Frank B. Wood, Sr., Frank B. Wood, Jr., and John D. Ponder, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 369 So.2d 713.

Writ denied. Result is correct.

DENNIS, J., would grant the writ.

BLANCHE, J., recused.


text:
    James E. KEMP d/b/a Capital Leasing Company v. Julian E. FERNANDEZ.
    No. 64693.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Julian E. Fernandez, applying for writ of certiorari, First Circuit Court of Appeal. Parish of St. Mary. 369 So.2d 725.

Writ denied.


text:
    COLLEGE ASSOCIATES v. The CITY OF BATON ROUGE et al. CHEVRON OIL COMPANY v. The CITY OF BATON ROUGE et al.
    No. 64675.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re The City of Baton Rouge, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 369 So.2d 1066.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Ronald James DUPREE, Sr. v. PECHINAY SAINT GOBAIN CO. et al.
    No. 64704.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Dow Chemical Company, Dow Engineering & Construction Company and Associated Indemnity Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 369 So.2d 1075.

Writ denied.


text:
    Elosia Ann Babin BROCATO v. Vincent BROCATO, Jr. Vincent BROCATO, Jr. v. Elosia Ann Babin BROCATO.
    No. 64698.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Elosia Ann Babin Brocato, applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 369 So.2d 1083.

Writ denied.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    Clarence R. FARRELL v. John W. WILBERT, Jr., et al.
    No. 64674.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Employers Mutual Liability Insurance Company of Wisconsin, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 369 So. 1087.

Writ denied.


text:
    Myrtle Moseley PARKER et al. v. TRAVELERS INSURANCE COMPANY et al. Jonathan PELLEGRIN et al. v. TRAVELERS INSURANCE COMPANY et al.
    No. 64684.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Jonathan Pellegrin and Fireman’s Insurance Company of Newark, New Jersey, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of Terrebonne. 369 So.2d 1120.

Writ denied.


text:
    Carey L. McBROOM v. ARGONAUT INSURANCE COMPANY et al.
    No. 64657.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Carey L. McBroom, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 370 So.2d 212.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    Evelyn Berry TOLBERT, Individually, etc. v. STATE of Louisiana, Through the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION.
    No. 64658.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Evelyn Berry Tolbert, Individually, etc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 370 So.2d 166.

Writ denied.


text:
    Ernest J. LAURENT v. Dorothy Estelle LAURENT.
    No. 64691.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Ernest J. Laurent, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 369 So.2d 476.

Denied.

BLANCHE, J., would grant the writ.


text:
    Mrs. Calvin J. PEPITONE et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 64708.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Mrs. Calvin J. Pepitone, et al., applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 369 So.2d 267.

Denied.


text:
    Mrs. Hilda Fourdais LOTZ et al. v. Ernest J. HESSLER, Register of Conveyances.
    No. 64689.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Mrs. Hilda Fourdais Lotz, et al., applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 369 So.2d 265.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    Ferdinand ANDREWS v. C. F. & I. STEEL CORPORATION, American Home Assurance Company, Missouri Pacific Railroad Company and the Colorado and Wyoming Railway Company.
    No. 64669.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Ferdinand Andrews, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 369 So.2d 257.

Writ denied.


text:
    James Lynn MARTIN v. CORAL GABLES ACADEMY AND INSTITUTE OF LEARNING, INC., d/b/a Gables Academy.
    No. 64683.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re James Lynn Martin, applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 369 So.2d 255.

Writ denied.

DIXON, J., would grant the writ.


text:
    Marc Allen POSEY v. Raynard J. FABRE et al.
    No. 64680.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Marc Allen Posey, applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 369 So.2d 237.

Denied.

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


text:
    Charles R. PETERSON v. DEPARTMENT OF STREETS.
    No. 64636.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Charles R. Peterson, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 369 So.2d 235.

Denied.

DENNIS, J., would grant the writ.


text:
    Elmo BREAUX v. MARINE ELECTRIC AND RELIANCE INSURANCE COMPANY.
    No. 64692.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Elmo Breaux, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 369 So.2d 196.

Writ denied.

DIXON, J., would grant the writ.


text:
    MULBERRY ASSOCIATION, INC., and Rader Jackson v. Ernest V. RICHARDS, IV, Ernest V. Richards, III, et al.
    No. 64668.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Ernest V. Richards, IV, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 369 So.2d 185.

Writ denied.

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


text:
    Succession of Irwin W. ROSENTHAL.
    No. 64682.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Mrs. Irwin W. Rosenthal, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 369 So.2d 166.

Writ denied.


text:
    STATE of Louisiana v. Donald Douglas DIXON.
    No. 64827.
    Supreme of Court of Louisiana.
    June 11, 1979.
   In re Donald Douglas Dixon, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Ouachita. No. 38,809.

Denied.