author: RAWLS, Acting Chief Judge. BOYER, Judge,

text:
    Michael John LYTWYN, Appellant, v. STATE of Florida, Appellee.
    No. DD-358.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1977.

      Harry Lewis Michaels and E. Douglas Spangler, of Michaels & Spangler, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Appellant, in appealing a conviction of manslaughter, poses the following meritorious point on appeal: Whether the trial court erred in instructing the jury as to the presumption of intoxication pursuant to Section 322.262(2)(c), Florida Statutes.

An automobile, which appellant was driving, collided with an automobile that swung in his path while making an improper turn. Two passengers in the latter automobile died as a result of the accident. Appellant was transported to a hospital and, while undergoing treatment for injuries, was asked for permission for a blood sample to be extracted. A state trooper advised him that if he refused the test his driver’s license would be suspended for 90 days. Appellant refused. After consulting with the state attorney’s office, a state trooper ordered the extraction of a blood sample which revealed a blood alcohol content of .20 percent. Appellant was not placed under arrest, but several weeks later was indicted by the Leon County Grand Jury upon two counts of manslaughter by reason of intoxication.

The trial court, over appellant’s strenuous objections, instructed the jury, inter alia:

“Now, as to intoxication, Ladies and Gentlemen, I charge you that if there was at the time of this accident or incident, more than .10 by weight of alcohol in the Defendant’s blood, it is prima facie evidence that Defendant was under the influence of intoxicating beverages to the extent that his normal faculties were impaired.”

In continuing this instruction, the trial court read to the jury the provisions of Sections 322.262(2); 322.261(l)(a), 322.-261(l)(c), and 322.261(l)(e), Florida Statutes.

The foregoing statutes set forth a statutory scheme establishing a presumption of intoxication; such presumption being created solely by the legislature. Section 322-262(2), Florida Statutes, provides, inter alia: “. . . the results of any test administered in accordance with s. 322.261 and this section shall be admissible into evidence . . . [and] shall give rise to the following presumptions . . . We pause to note that the unambiguous language in this statute creates a presumption only when the test is given in accordance with Sections 322.261 and 322.262, Florida Statutes. The salient question is: Was the instant test given in accordance with the statutory provisions? The “implied consent statute”, Section 322.261(l)(a), Florida Statutes, provides for a “breathalyser” test following a lawful arrest of the alleged offender. Such a test was not proffered or refused by appellant. Subsection (c) of this statute provides for the administration of a blood test after the alleged offender is admitted to a hospital and if he is “incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test.” Finally, subsection (e) of the subject statute details the sanctions that may be imposed upon a person voluntarily refusing any such test. The obvious answer to the above question is that the test was not administered pursuant to the provisions of Chapter 322, as appellant was not incapacitated and refused the test administered. Thus, the statutory presumption was not applicable to appellant, and the instructions given by the trial court based upon Chapter 322, Florida Statutes, were clearly erroneous.

The judgment of conviction is reversed with directions that a new trial be granted.

MASON, ERNEST E., Associate Judge, concurs.

BOYER, J., concurs specially.

BOYER, Judge,

concurring specially.

I concur in reversal for the reasons stated in the majority opinion. However, I would also reverse on the ground that there was insufficient evidence to sustain appellant’s conviction. In my view the state failed to prove even by a preponderance of the evidence, much less beyond and to the exclusion of reasonable doubt, that either intoxication or negligence on the part of appellant caused the accident in which the life was lost giving rise to appellant being charged with manslaughter. This case is in no wise similar to State v. Harris, 348 So.2d 283 (Fla.1977). I would therefore reverse and order appellant discharged.

      . The subsection, Section 322.262(2)(c), Florida Statutes, applicable in the' instant case provides:
      “(c) If there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be prima facie evidence that the person was under the influence of alcoholic bevprages to the extent that his normal faculties were impaired. Moreover, such person who has a blood alcohol level of 0.10 percent or above shall be guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood alcohol level.”


source: Caselaw Access Project

author: TATE, Justice. SUMMERS, Justice DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. John T. LUCK d/b/a Tommy’s News et al., Appellants. STATE of Louisiana, Appellee, v. Robert H. GILMORE d/b/a Gilmore’s Newsstand et al., Appellants.
    Nos. 60177 and 60178.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Concurring Opinion Dec. 13, 1977.
    Rehearing Denied Dec. 14, 1977.

      William M. Lucas, Jr., Dufour, Levy, Marx, Lucas & Osborne, New Orleans, Robert J. Donovan, Jr., Naff, Kennedy, Goodman, Stephens, Donovan & Parnell, Shreveport, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The State of Louisiana, represented by the district attorney, filed these two proceedings to determine the obscenity (or not) of certain named publications which the defendants Gilmore and Luck were offering for sale at their news stands. Subsequently the Shreveport News Agency, Inc., wholesale distributor of the publications, was joined as a co-defendant in both prosecutions.

The defendants appeal from adverse judgment, which declared the publications in question to be obscene. The appeals present four identical assignments of error. These assignments principally question the constitutionality of provisions of La.R.S. 14:106, as enacted by Act 274 of 1974, which provides for the crime of obscenity:

Assignments 1 and 2 relate to the constitutionality of the pre-arrest hearing required for a determination of obscenity pri- or to the filing of criminal charges, La.R.S. 14:106 F (1974);

Assignment 3 relates to the exemption of schools, churches, etc., from criminal prosecution, La.R.S. 14:106 D, which is attacked as an unconstitutional denial to the accused of the equal protection of the laws; and

Assignment 4 relates to the allegedly unconstitutional, because vague and over-broad, definition of acts and conduct punished by the crime of obscenity, La.R.S. 14:106 A. As to this last assignment, we have rejected similar contentions and have found the statute free of constitutional infirmity in the aspects suggested. State v. Amato, 343 So.2d 698 (La.1977). We see no reason to re-exámine this recent holding to such effect.

Before discussing the first three assignments, we deem it advisable to review briefly the jurisprudential context in which the 1974 obscenity version of La.R.S. 14:106 was enacted through Act 274 of 1974.

Jurisprudential context of 1974 statute

The pre-1974 version of La.R.S. 14:106 (1972) was declared unconstitutional by this court in State v. Shreveport News, Inc., 287 So.2d 464 (La.1973). In the light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), we declared our statute overbroad, too general, and without the specificity constitutionally required by virtue of Miller. Act 274 of 1974 re-enacted La.R.S. 14:106 to meet these constitutional requirements. It successfully did so. State v. Amato, 343 So.2d 698 (La.1977).

In addition, sub-section F of the 1974 act established a pre-arrest obscenity hearing. This provision was not found in prior versions of La.R.S. 14:106 enacted by Acts 43 of 1942, 314 of 1950, 388 of 1958, 199 of 1960, 87 of 1962, 647 of 1968, 167 of 1970, 605 of 1972, and 743 of 1972. The addition of this protection for a person accused of selling or displaying, etc., obscene materials was an obvious attempt to comply with the constitutional requirements enunciated by this court in Gulf States Theatres of La., Inc. v. Richardson, 287 So.2d 480 (La.1973) and State v. Eros Cinema, Inc., 262 La. 706, 264 So.2d 615 (1972).

In these two decisions, we noted that statutes providing for governmental interdiction of, or the threat of arrest for, sale or display of potentially obscene materials may also violate constitutional rights to freedom of expression, unless adequate procedural safeguards are established for prompt judicial determination as to whether the publications or works are in fact and law obscene.

Without the availability of an immediate judicial determination of obscenity vel non, after adversary hearing, the constitutionally protected expression may be as effectively curtailed or inhibited as may obscene material, although only the latter is not safeguarded in expression by our state and federal constitutions. Prior restraint through threat of arrest may just as effectively silence constitutionally protected expression as would censorship itself, unless procedural mechanisms are provided to secure immediate adversary judicial determination of whether the material attacked ex parte as obscene by governmental agents is actually not so, but is instead within the protection of free expression provided by our constitutions.

I. Constitutionality of pre-arrest hearing to determine whether material is obscene

Assignments 1 and 2 raise issues as to the constitutionality and application of La.R.S. 14:106 F (1974). In attempted compliance with the jurisprudential requirements above summarized, this subsection provides for a pre-arrest hearing before charges of obscenity may be filed.

By this provision, no person shall be arrested or charged with an obscenity violation involving any material, unless (except for hard-core pornography explicitly showing ultimate sex acts) an adversary hearing has first been afforded such person for purpose of determining whether the material is obscene. Subsection P is set forth in full as “Appendix 1” to this opinion. The enactment further provides for the hearing to be held within 72 hours, for the effect of the determination of obscenity of materials at such hearing, and for appellate review of such determination.

By Assignment 1, the defendants attack as vague and indefinite, for certain specified reasons, this statute providing for pre-arrest adversary hearing and judicial determination of obscenity. By Assignment 2, the defendants complain that the district court erred in denying them a jury trial on the issue of obscenity.

The chief complaints of unconstitutional vagueness relate to the alleged failure of the statute to specify the nature of the hearing (civil or criminal), the applicable burden of proof (“preponderance” versus “beyond a reasonable doubt”), the rules of procedure applicable (civil or criminal), or the nature of appellate review (by writ or by appeal of right).

The defendants further complain that a provision entitling the finding of obscenity to be res judicata, La.R.S. 14:106 F(4), unconstitutionally denies the accused to a right of jury determination on the issue of obscenity basic to his innocence or guilt. They finally complain that, since the statutory “appeal” from the determination does not of right stay the proceedings, the statute effectively imposes an unconstitutional prior restraint resulting from the initial determination by the trial court, which cannot normally be reviewed until most of the material is outdated and no longer merchantable anyway.

These contentions are not insubstantial. Nevertheless, we find the statutory section to be constitutional. When construed in the light of the obscenity statute as a whole and in the jurisprudential context of the present statute, the defendants’ objections of vagueness are found to be without merit.

We summarize the proper construction of the statute to be as follows:

Nature of hearing and procedure:

In statutory context, the hearing is a criminal proceeding preliminary to the possible institution of criminal charges of obscenity. It is primarily designed to protect an accused from arrest and charge for obscenity by requiring prior thereto (except for hard-core pornography depicting the ultimate sexual act) a judicial determination after adversary hearing of whether the material is in fact obscene and constitutes cause for criminal prosecution.

The rules of criminal procedure apply. Further, in this hearing before the judge alone, the state bears a burden of proving that material is obscene beyond a reasonable doubt: In view of the statutory purpose of protecting freedom of expression, establishing probable cause for prosecution merely by the preponderance of the evidence will not accomplish the statutory purpose of preventing undue invasions or inhibitions of constitutionally protected expression. See McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 1195-1201, 47 L.Ed.2d 387 (1976).

Jury Trial

This proceeding preliminary to a criminal prosecution is triable by the judge alone. (Of course, as to the issue of a defendant’s innocence or guilt of the crime, he is entitled on the merits to a jury trial by reason of the penalties imposed by the statute. La.R.S. 14:106 G.) The pre-arrest proceeding is in nature of an in rem determination of obscenity, not of a trial of innocence or guilt.

This preliminary determination may be entrusted to the trial judge alone (provided as here the adversary proceeding is surrounded by adequate procedural safeguards), without the necessity of requiring a jury determination (conceding that the test is whether “the average person applying contemporaneous community standards would find that the conduct, taken as a whole, appeals to the prurient interest” La. R.S. 14:106 A(2), Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973)). The hearing pertains to the nature of the material, rather than to the defendant’s criminal guilt. See McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976) and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973) (see also Alexander v. Commonwealth, 214 Va. 539, 203 S.E.2d 441 (1974) and 212 Va. 554, 186 S.E.2d 43 (1972)). Contra: McNary v. Carlton, 527 S.W.2d 343 (Mo.1975), noted 45 UMKC L.Rev. 159 (1976). Therefore, no jury trial is required for this preliminary (in rem) hearing, since it is not a trial pertaining to the defendant’s innocence or guilt.

Effect of judicial determination that material is obscene:

La.R.S. 14:106 F(4) (see Appendix 1) provides that the determination by a district court shall not be “res judicata in any proceeding in any other judicial district,” and that “evidence of any hearing held pursuant to this section [14:106] shall not be competent or admissible in any criminal action for the violation of any other section of this title [i. e., the criminal code]”, except as to the issue of “scienter” of a defendant at such hearing. (Italics ours.)

As we interpret this provision (F(4)), its effect is to prevent the judicial determination of obscenity in one judicial district from serving as the basis of prosecution for obscenity in any other judicial district. The provision has the further purpose of preventing the determination by the hearing from being used as evidence in any criminal prosecution whatsoever: except as bearing on the issue of “scienter” with regard to the same material claimed to be obscene by the hearing—i. e., to negate any claim of lack of previous knowledge (scienter) of the possibly obscene nature of the material—and then only in prosecutions for violations of provisions of the criminal code other than La.R.S. 14:106.

We do not interpret this provision as authorizing introduction of the trial court’s preliminary obscenity determination in the trial before the jury on the merit-issue of innocence or guilt of a violation of La.R.S. 14:106. The jury, not the judge, must make the ultimate determination as to the innocence or guilt of the crime of obscenity arising out of the material involved.

The purpose of the hearing is not to afford evidence against the defendant in the criminal trial. It is rather to protect him from unwarranted prosecution from material arguably protected by our constitutional guarantees of freedom of expression. We regard it as no more admissible in the trial of innocence or guilt than would be, for example, the trial judge’s determination in a preliminary examination that there is probable cause for the prosecution.

Appellate review:

La.R.S; 14:106 F(3) (See Appendix 1) provides: “The state or any defendant may appeal from a judgment. Such appeal shall not stay the judgment” (which determined the material is or is not obscene). Although a defendant appeals, he is nevertheless subject to criminal prosecution pending appellate decision.

Preliminarily, we note that the statutory provision of “appeal” from this interlocutory determination of obscenity is apparently not authorized by our state constitution, as construed by a majority of this court. La.Const. of 1974, Art. 5, Section 5(D) provides for an appeal only (1) if a law or ordinance has been declared unconstitutional or (2) if the defendant has been convicted of a felony or of a misdemeanor for which serious penalties have been imposed. See State v. James, 329 So.2d 713 (La.1976). Accordingly, neither state nor defendant may appeal from the determination. However, both have the right to apply for supervisory review in this court. La. Const, of 1974, Art. V, Sections 2 and 5(A).

We should add, however, that supervisory review may afford a more expeditious determination than the appeal, with its required formalities of preparation and delays for rehearing. This remedy of review by supervisory writ is thus consistent with the purposes of the statute.

As to the scope of review, the trial court’s determination that material is or is not obscene presents an issue of law fully reviewable by this court. Even the factual determination of obscenity by a trial jury must be subject to full appellate review, to meet constitutional standards designed to effectuate freedom of expression. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974).

We recognize that the statute permits criminal prosecution, even though final appellate judicial review has not been completed of the trial court’s preliminary determination of obscenity. We find no constitutional infirmity in this provision, providing speedy appellate (supervisory) review is furnished by this court. See State v. Eros Cinema, Inc., 262 La. 706, 264 So.2d 615 (1972).

In Eros Cinema, recognizing the possible inhibition to constitutional protected expression by seizure of a single copy for evidence of matter claimed to be obscene, we nevertheless pointed out that, balancing the interest of the state in controlling obscenity, some reasonable inhibition might be permissible, if accompanied by speedy adversary judicial determination of the constitutional issue. We refused to invalidate a seizure made prior to final appellate review, although we did point out that expeditious appellate review must be afforded in order to safeguard constitutional rights.

In the present instance, for example, many of the publications the trial court determined to be obscene were periodicals of monthly issue. If prosecutions for those determined to be obscene were barred until after final appellate review, in effect no charge or arrest could ever be made for obscenity with regard to the issue involved^—due to the necessary delays of the judicial system, the periodical determined to be obscene for the month in question would be out of date and no longer on sale.

As in Eros Cinema, however, we do note the trial court’s obligation to render judgment expeditiously after the course of the hearing. (We therein fixed a 24-hour period. La.C.Cr.P. Art. 3; 264 So.2d 620.) We likewise note this court’s obligation to give immediate consideration to remedial writs sought to review such action, with preferential hearing or summary relief to be afforded if the writ application is granted.

II. Constitutionality of exemption of schools, churches, etc., from obscenity statute

By La.R.S. 14:106 D (1974), the provisions defining and punishing the crime of obscenity were made inapplicable to schools, churches, museums, medical clinics, hospitals, public libraries, and governmental agencies. By Assignment 3, the defendants complain that this exemption denies them the equal protection of the laws. They claim that, on this account, the entire statute (La.R.S. 14:106) is unconstitutional and invalid.

Overview of La.R.S. 14:106 A (1974):

La.R.S. 14:106 (1974) is a highly complex statute which defines the crime of obscenity quite exhaustively. Our principal concern at present is with 14:106 A, which sets forth six separate statements of the criminal act constituting the crime of obscenity.

Section 106 A(l) prohibits the exposure to public view of certain parts of one’s body with the intent of arousing sexual desire. This subsection is not at issue in the present case, and requires no further explanation.

In the next two subsections, set forth in full in Appendix 2, the legislature adopted a different statutory technique. In 106 A(2), a class of conduct is defined, and in 106 A(3), a class of material is defined. With the prohibited objects specified, these sections make criminal the trafficking in either the proscribed conduct or material. The legislative intent so reflected is that involvement with such material is not criminal, unless it be for ensuing commercial gain. This intent is reflected both in the range of the description of the proscribed activities (“sale, allocation, consignment, distribution, dissemination, advertisement, exhibition or display” or the “manufacture, publication or printing” for such purposes) and in the definition of “hard core sexual conduct” (“public portrayal, for its own sake, and for ensuing commercial gain »)

Equal Protection

The defendants urge that they are unconstitutionally denied the equal protection of the laws by the exemption of schools, museums, public libraries, hospitals, and governmental agencies, etc., from prosecution for the criminal offense of obscenity. They claim that the exemption of various institutions from the force of the statute allows those institutions to carry on the same activities which would be criminal if the actor were not one of the exempted institutions.

We first note that in order for material to be declared obscene, and to serve as the basis for criminal prosecution, it must lack “serious literary, artistic, political or scientific value.” R.S. 14:106 A(3). Very little, if any, of the material which has traditionally been available for display or distribution at these institutions would be characterized as lacking one or more of these values. We next observe that the statute is directed at trafficking in obscenity for commercial gain, and that, in general, any ma-ferial available at such institutions is offered for purposes other than commercial' ones.

There does remain, however, the possibility that obscene material might be distributed at these institutions for commercial gain, such as at a bookstore or magazine stand open for purchases by the public. We agree with the defendant’s contention that therefore La.R.S. 14:106 D is unconstitutional, insofar as it exempts the listed institutions in trafficking for commercial purposes in hard-core pornography or obscene material, conduct which is made criminal if the actor is a person or institution not exempted by 14:106 D.

The non-exempt persons or entities are deprived of the equal protection of the laws by a classification so made without rational basis for differentiation reasonably related to a valid governmental purpose. See Succession of Robins, 349 So.2d 276 (La.1977) and State v. Johnson, 343 So.2d 705 (1977). Louisiana has no legitimate interest in allowing a college, etc., to sell pornography for commercial gain, while prosecuting a commercial establishment next door for the same activity.

We therefore find La.R.S. 14:106 D unconstitutional, insofar as it permits such a result.

Nevertheless, this constitutional infirmity does not, as suggested by the defendants, infect the entire statute. Instead, the enactment must be interpreted in such a way as to comport with the constitution, and we find that severing section D, insofar as it is unconstitutional, achieves this goal.

Section 2 of Act 274 of 1974 expressly declares that the interpreter of the legislation shall not hold invalid those sections of the act which can be given effect without the invalid provisions.

In State v. Johnson, 343 So.2d 705 (La.1977), we held another section of this statute (R.S. 14:106 C) to be unconstitutional in part, but we severed the defective language and upheld the rest of the statute. As we reiterated in Johnson, 343 So.2d 708: “ * * * the valid portion of an enactment must be independent of the invalid portion . . . The law enforced after separation [of the invalid portion], must be reasonable in light of the act as originally enforced. The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed.”

So tested, we find La.R.S. 14:106 D(1974), herewith declared unconstitutional, is sever-able from the remainder of the statute, which therefore need not be invalidated as a whole. Especially in view of the sever-ability clause, the severed portion is not so interrelated and connected with the other portions of the statute as to raise the presumption that the legislature would not have enacted the statute without the remainder hereby invalidated. Guidry v. Roberts, 335 So.2d 438, 447-48 (La.1976).

Decree

Treating this appeal as an application for supervisory writs, we grant the application. See Footnote 4, above. For the reasons assigned, we find the assignments of error without merit. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

SUMMERS, J., concurs in the result and will assign reasons.

DIXON, J., dissents with reasons.

APPENDIX 1

La.R.S. 14:106 F (1974):

(1) Except for those motion pictures, printed materials and photographic materials showing actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, close-up depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts, no person, firm or corporation shall be arrested, charged or indicted for any violation of a provision of this section until such time as the material involved has first been the subject of an adversary hearing under the provisions of this section, wherein such person, firm or corporation is made a defendant and, after such material is declared by the court to be obscene, such person, firm or corporation continues to engage in the conduct prohibited by this section. The sole issue at the hearing shall be whether the material is obscene.
(2) The hearing shall be held before the district court having jurisdiction over the proceedings within seventy-two hours after receipt of notice by the person, firm or corporation. The person, firm or corporation shall be given notice of the hearing by registered mail or by personal service on the owner, manager or other person having a financial interest in the material; provided, if there is no such person on the premises, then notice may be given by personal service on any employee of the person, firm or corporation on such premises. The notice shall state the nature of the violation, the date, place and time of the hearing, and the right to present and cross examine witnesses.
(3) The state or any defendant may appeal from a judgment. Such appeal shall not stay the judgment. Any defendant engaging in conduct prohibited by this section subsequent to notice of the judgment, finding the material to be obscene, shall be subject to criminal prosecution notwithstanding the appeal from the judgment.
(4) No determination by the district court pursuant to this section shall be of any force and effect outside the judicial district in which made; and no such determination shall be res judicata in any proceeding in any other judicial district. In addition, evidence of any hearing held pursuant to this section shall not be competent or admissible in any criminal action for the violation of any other section of this title; provided, however, that in any criminal action, charging the violation of any other section of this title, against any person, firm or corporation that was a defendant in such hearing, involving the same material declared to be obscene under the provisions of this section, then evidence of such hearing shall be competent and admissible as bearing on the issue of scienter only.

APPENDIX 2

La.R.S. 14:106 A(2), (3) (1974):

A. The crime of obscenity is the intentional: * * *
(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards. would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political or scientific value.
Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:
(a)Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals or an animal and a human being; or
(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva or female breast nipples; or
(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals or female breast nipples, or the condition of being fettered, bound or otherwise physically restrained, on the part of one so clothed; or
(d) Actual, simulated or animated, touching, caressing or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
(e) Actual, simulated or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured and marketed for such purpose.
(3) Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition or display of obscene material, or the preparation, manufacture, publication or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition or display.
Obscene material is any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest; and, (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above; and (c) the work or thing taken as a whole lacks serious literary, artistic, political or scientific value.

SUMMERS, Justice

(concurring).

As I understand the majority opinion it means that “evidence of any hearing held pursuant to this section is inadmissible at the trial, even as to the issue of scienter. The matter is placed in doubt by saying “We do not interpret this provision as authorizing introduction of the trial court’s preliminary obscenity determination in the trial before the jury on the merit-issue of innocence or guilt of a violation of La.R.S. 14:106.” I believe, as the statute declares, that evidence of the hearing is admissible “on the issue of scienter only.”

Nor do I construe Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), to mean that this Court, contrary to Louisiana’s Constitution, should review the fact question of obscenity. Only the law can be reviewed by this Court. Our jurisdiction is limited by the State’s Constitution to questions of law. La.Const. art. V, § 5(C). While decisions of the Supreme Court of the United States may find that our Constitution does not comply with the Federal Constitution, that Court cannot confer jurisdiction on this Court where it is denied by our constitution.

For the foregoing reasons I must concur.

DIXON, Justice

(dissenting).

I respectfully dissent.

Once again the court avoids the issue, and refuses even to discuss defendants’ Assignment No. 4. We avoided the issue in State v. Amato, 343 So.2d 698 (La.1977).

State v. Amato held that R.S. 14:106 met federal constitution standards in providing that the trier of fact determines what “contemporary community standards” are. But the opinion did not touch the complaint articulated in the dissent. Under Louisiana constitutional criminal law, it is impossible, as the State Constitution has been interpreted to this point, to delegate to the various judges and juries in the various judicial districts the power to measure the conduct of the accused against an undefined and unknown “contemporary community standard,” and then, and not until then, inform the accused that what he has done violates the law.

The question is not whether the scheme passes muster under the federal constitution as interpreted by the United States Supreme Court. It does. But the district attorney did not brief the point, Amato did not touch the point, and the court now ignores the point that the federal scheme violates the Louisiana Constitution provision that the statute must inform the accused that certain conduct is criminal.

It may be that the majority in Amato understood (but did not say) that the federal standards required such innovative legal machinery to present a legislative definition of obscenity which makes criminal that which is acceptable in certain communities. Although this is a novel proposition, it would explain the refusal of this court to address the issue raised in Assignment No. 4.

The defendants and the State deserve an explanation.

      . Subsequent to his appeal, the defendant Luck died. The state correctly suggests that, as to him, the proceeding (a preliminary to possible criminal prosecution) has abated. State v. Morris, 328 So.2d 65 (La.1977).

      . La.R.S. 14:106 A (1974) was re-enacted by Act 717 of 1977, with one insignificant change of verbiage (an “or” substituted for an “and” in 106A(2)(e)).

      . This provision was re-enacted without change by Act 717 of 1977.

      . Although the defendants appealed, we will treat this proceeding as an application for supervisory writs. Rules of Supreme Court of Louisiana, Rule 1, Section 11 (1975). To afford the right of both parties to apply for rehearing, see Rule 9, Section 6, the writ will be and is herewith granted.

      . La.R.S. 14:106 D: “The provisions of this section [La.R.S. 14:106] do not apply to recognized and established schools, churches, museums, medical clinics, hospitals, physicians, public libraries, governmental agencies, quasi-governmental sponsored organizations and persons acting in their capacity as employees or agents of such organization.
      “For the purpose of this paragraph, the following words and terms shall have the respective meanings defined as follows:
      (1) Recognized and established schools means schools having a full time faculty and pupils, gathered together for instruction in a diversified curriculum.
      (2) Churches means any church, affiliated with a national or regional denomination.
      (3) Physicians means any licensed physician or psychiatrist.
      (4) Medical clinics and hospitals mean any clinic or hospital of licensed physicians or psychiatrists used for the reception and care of the sick, wounded or infirm.”

      . Act 717 of 1977 re-enacted La.R.S. 14:106. The sections discussed in this opinion were re-enacted without change (except for the substitution of an “or” for an “and” in the last phrase of 106 A(2)(e) and the addition of a clarifying phrase to 106 A(6)). The only substantive changes appear to be: (a) the deletion of the concluding clause (“unless there is no person,” etc.) from 106 C, in apparent compliance with the decision of this court invalidating such clause in State v. Johnson, 343 So.2d 705 (La.1977); (b) the increase of the permissible penalty in 106 G, to provide for imprisonment “with or without hard labor” for violations punished by the first paragraph thereof; and (c)the addition of 106 I, providing for defendants, notices, and service in the event a corporation is charged with violating the statute.

      . La.R.S. 14:106 A(l): “Exposure of the genitals, pubic hair, anus, vulva or female breast nipples in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom with the intent of arousing sexual desire.”
      The specification of the particular parts of the body replaces the prior language which prohibited exposure “of one’s person.” This more general rendering had been used in Louisiana obscenity statutes from 1942 until Act 274 of 1974. The 1974 amendment failed to specify that the exposure must be of one’s own organs, but in context no legislative intent is manifested to broaden the scope of the prohibited conduct beyond exposure “of one’s own person.”

      . La.R.S. 14:106 A(2) reads in part: “Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:
      (a)Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals or an animal and a human being; or
      (b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva or female breast nipples; or
      (c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals or female breast nipples, or the condition of being fettered, bound or otherwise physically restrained, on the part of one so clothed; or
      (d) Actual, simulated or animated, touching, caressing or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
      (e) Actual, simulated or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured and marketed for such purpose.”

      .La.R.S. 14:106 A(3) reads in part: “Obscene material is any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest; and, (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above; and (c) the work or thing taken as a whole lacks serious literary, artistic, polifical or scientific value.”
      This language tracks the guidelines set out by the Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

      .La.R.S. 14:106 A(2): “Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political or scientific value. * * * ”
      However, see Footnote 8, “hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain ” of certain explicitly specified sexual activity. (Italics ours.)

      . La.R.S. 14:106 A(3): “Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition or display of obscene material, or the preparation, manufacture, publication or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition or display. * * * ’’

      . The remaining three subsections of 106 A are not at issue in the instant case.

      . Act 274 of 1974, Section 2: “If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. James THOMASON.
    No. 59934.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Paul H. Kidd, Monroe, George M. Strick-ler, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

James E. Thomason, a former employee of the Monroe City School Board, was indicted by the grand jury for theft of 113 tires valued at $1,113 from the school board in violation of La.R.S. 14:67. After trial by jury, defendant was found guilty of attempted theft of property valued at $1,113 and was sentenced to serve six months in the parish prison. Execution of sentence was suspended, and defendant was placed on eighteen months supervised probation. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to recuse the district attorney. The basis for his contention is that the district attorney is the statutory counsel for the school board, victim of the offense, and his office had given legal advice to the board relative to defendant’s continued employment.

At the hearing on the motion to recuse, there was testimony by Mr. Johnny C. Par-kerson, district attorney and statutory counsel to the school board, Mr. James Norris, assistant district attorney assigned as legal advisor to the board, and Mr. Sidney A. Seegers, superintendent of the school system. Their testimony was generally to the effect that Mr. Seegers had consulted Mr. Norris concerning the school board’s duty to provide a hearing for defendant who had been suspended from his employment without pay. Mr. Norris testified that his advice in reference to this matter was in no way related to the criminal prosecution with which he was not familiar. Mr. Parkerson testified that his office was contacted by the school board relative to defendant’s offer of restitution. He stated that his advice to the board in this connection was in his capacity as the district attorney in the prosecution of the case and not as legal advisor to the board. He added that his office is often contacted by victims of crimes concerning the advisability of accepting restitution. Mr. Parkerson testified that he had no personal interest in the case which conflicted with the fair and impartial administration of justice.

La.Code Crim.P. art. 680 provides in pertinent part:

A district attorney shall be recused when he:
(1) Has a personal interest in the cause which is in conflict with fair and impartial administration of justice; .

In the instant case, the record of the recusal hearing does not indicate that the district attorney had any personal interest in the cause. The mere fact that the district attorney is the statutory counsel for the school board and was consulted relative to some minor matters concerning defendant’s continued employment but not related to the criminal prosecution does not constitute a personal interest in the cause which is in conflict with the fair and impartial administration of justice. Hence, the trial judge did not err in denying defendant’s motion to recuse the district attorney.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion to suppress two incul-patory statements made by him. He argues that the second statement was not freely and voluntarily made as it was the product of a promise not to use the first statement.

At the suppression hearing, Charles Dortch and Brian Boney, investigators for the district attorney’s office, testified that they spoke with defendant on October 14, 1976 at the school board office. They stated that defendant was given his Miranda rights and signed a waiver of rights form before the first statement was taped. Mr. Dortch testified that defendant indicated that he understood his rights. Both investigators testified that the statement was freely and voluntarily given. They further testified that, pursuant to additional information obtained after the first statement was made, they spoke with defendant again on October 15 at his residence. Both investigators testified that defendant was again advised of his Miranda rights and signed a waiver of rights form before making the second statement. They further stated that defendant was not coerced to make the statement. Mr. Dortch admitted that he told defendant at the time of the taking of the second statement something to the effect that if he gave correct information in the second statement the first statement would not be used. He explained that he meant that the second statement would be the true account of what happened. He denied promising defendant that the first statement would not be used against him in a court of law. Defendant testified that Dortch told him that the first statement would not be used if he made a second statement. However, when asked why he made the second statement, defendant stated that he made it because the first one was not entirely truthful. Defendant did not indicate that he had been induced to make the second statement by a promise that the first one would not be used. Defendant further testified that the investigators had treated him nicely, had not exerted any pressure on him to give either statement, and had fully advised him of his rights.

Before an inculpatory statement can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes an inculpatory statement during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 14:453; State v. Lewis, 353 So.2d 703 (La.1977); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Cotton, 341 So.2d 355 (La.1976). The admissibility of an inculpatory statement is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of the inculpatory statement will not be overturned unless they are not supported by the evidence. State v. Lewis, supra; State v. Fowlkes, supra; State v. Hutto, supra; State v. Adams, supra; State v. Ross, supra; State v. Demourelle, 332 So.2d 752 (La.1976); State v. Sims, 310 So.2d 587 (La.1975).

In the instant case, the record reflects and defendant admits that he was advised of his Miranda rights prior to making each statement. Defendant himself testified that he was not mistreated in any manner nor pressured into giving the statements. His testimony does not indicate that he was induced to make the second statement by a promise that the first one would not be used, and Mr. Dortch denied promising defendant that the first statement would not be used in a court of law. In any event, at trial defendant stated that he had no objection to the introduction in evidence of the second statement.

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that both statements were freely and voluntarily made after defendant had been fully advised of his Miranda rights. Accordingly, the trial judge did not err in denying defendant’s motion to suppress both statements.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OP ERROR NO. 3

Defendant contends the trial judge erred in allowing the introduction in evidence of the first inculpatory statement. He argues that the state failed to give defendant prior written notice of its intent to introduce the statement in evidence. Defendant also contends that the trial judge erred in advising the state of the proper foundation for introduction of the statement.

Prior to trial, defendant moved to suppress all inculpatory statements. At the suppression hearing, evidence was introduced relative to the free and voluntary nature of both statements. The trial judge denied the motion to suppress as to “both statements.” Thereafter, the state requested that the trial judge review the first statement in order to delete irrelevant portions before its submission to the jury.

La.Code Crim.P. art. 768 provides:

If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

The underlying purpose of article 768 is to avoid surprise and allow adequate time for the preparation of defense. The article is statutory law. However, when it is not followed to the letter, as has happened in this case, this court will examine the entire record and determine whether defendant was prejudiced by the non-compliance and whether he suffered a substantial violation of his statutory rights. La. Code Crim.P. art. 921; State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).

In the instant case, the record of the suppression hearing clearly indicates that the state made known to defendant its intent to introduce the first statement in evidence. Moreover, although the pertinent portion of the record was not designated for appeal, the trial judge’s per curiam to Assignment of Error No. 3 states that defendant admitted having actual knowledge of the state’s intent to introduce the first statement in evidence but chose to view that possibility as “a bluff.” The per cu-riam further states that defendant agreed that a two hour and fifteen minute recess would be adequate time to prepare his defense to the first statement; the court granted such a recess. We do not find under the circumstances here presented that defendant was surprised or prejudiced by the state’s failure to give formal written notice of its intent to introduce the first statement in evidence. Defendant had actual knowledge of the state’s intent to do so. Accordingly, the failure to give defendant written notice does not constitute reversible error. La.Code Crim.P. art. 921; State v. Lacoste, supra.

Defendant’s contention that the trial judge erred in advising the state of the proper foundation for introduction in evidence of this statement is equally without merit.

The statement was originally taped and later transcribed; the tape was erased. During trial, the state offered the testimony of Mr. Dortch, the investigator who taped defendant’s statement, to establish the accuracy of the transcribed account. Defendant objected. Outside the presence of the jury, defendant suggested: “It may be that the secretary [who transcribed the statement] needs to be called.” The jury was returned to the courtroom and the examination of Dortch continued. At the conclusion of his testimony, the jury was again excused. At this time, the trial judge suggested that the state call as a witness the secretary who made the transcription. Defendant objected to the court giving advice to the state. He argues that such action was improper.

First, even assuming arguendo that the suggestion constituted a prohibited comment on the evidence (La.Code Crim.P. art. 772), it was made outside the presence of the jury. State v. McGuffey, 301 So.2d 582 (La.1974). Secondly, it was only a repetition of defendant’s own suggestion that the secretary be called upon to testify. Finally, the mere suggestion by the judge to the state of the proper foundation for introduction in evidence, made outside the presence of the jury, did not constitute such participation by him in the trial as to deprive defendant of a fair trial. See, State v. Layssard, 310 So.2d 107 (La.1975). Accordingly, we do not find that the trial judge’s suggestion was improper under the circumstances.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in denying his motion for a mistrial. He argues that the state in rebuttal argument made remarks which were prejudicial to defendant.

During closing argument, Mr. Charles Jones, a black assistant district attorney, sat at counsel table. In rebuttal, Mr. Brian E. Crawford, assistant district attorney, referred to Mr. Jones’ definition of theft. Mr. Crawford made no reference to Mr. Jones’ race. Defendant moved for a mistrial at the end of argument on the ground that the reference to Mr. Jones’ definition constituted an appeal to the racial prejudice of three black jurors.

We do not find that this innocuous reference to a suggested argument of an assistant district attorney, rightfully present at counsel table, constituted an appeal to racial prejudice simply because he happened to be black. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 6 is without merit.

DECREE

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

DIXON, J., concurs.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 4 and 5. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.R.S. 16:2.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Alfred BOSS, Jr.
    No. 60010.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Dee D. Drell, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Alfred Boss, Jr. was charged by bill of information with having committed the offense of aggravated battery (a violation of R.S. 14:34) in that on November 20,1976 he shot Joe Butler in the knee with a twelve gauge shotgun. Defendant, after trial by jury, was found guilty, and sentenced to six years at hard labor in the custody of the Department of Corrections. Defendant now appeals to this Court for a reversal of his conviction relying upon two assignments of error.

The facts of the case are generally as follows: On the afternoon of November 20, 1976, defendant Boss, sixty years old, and the victim Joe Butler, forty-eight years old, were at Martin’s Grocery Store just off Highway 28 West in Rapides Parish. According to Boss, an altercation occurred, and the victim threatened Boss with a knife. Boss and Butler left the store; Butler returned about six that evening, and Boss returned about 6:30 or 7:00 p. m. Shortly thereafter, outside of the store, Boss shot Butler in the knee with a shotgun. According to Boss, Butler “came at him” with a knife, precipitating the shooting.

ASSIGNMENT OP ERROR NO. 1

In defendant’s first assignment of error he contends that he was prejudiced by what he terms “continuous and repeated attempts by the District Attorney to instruct the jury during voir dire.” This assignment is without merit. Our review of the voir dire examination indicates that the defendant was not prejudiced by the state’s questioning. The trial judge sustained defendant’s objections. Thus, in spite of the repetitious efforts of the district attorney to instruct the jury on the law, that effort was thwarted by trial court rulings which were favorable to the defense.

ASSIGNMENT OF ERROR NO. 2

Defendant’s second assignment of error raises a more serious question for our consideration. In this assignment defendant contends that the trial court erred in excluding evidence of the victim’s prior hostile conduct which had occurred on the same day as the shooting in question. The testimony sought to be introduced was that of one Rodney Winn. The essence of this witness’ testimony was that earlier on the same day the victim Butler was involved in a show of aggression involving a third party, not defendant Boss. Upon a timely state objection the trial court admonished the jury to disregard the testimony of this witness. Defendant contends that once an overt act is proven on the part of the victim this testimony is admissible under our decision in State v. Lee, 331 So.2d 455 (La.1976) to establish that the victim was the aggressor in the conflict with defendant.

The state, despite its concession that an overt act was proven by the victim, maintains that the trial court correctly excluded the testimony of the witness Winn. The state contends that for such testimony to have been admissible the prior hostile act must have been known to the defendant at the time of the shooting, and that defendant Boss did not know of this hostile act.

In State v. Lee, supra, we held that once an overt act is established on the part of the victim evidence of threats and of the victim’s dangerous character were admissible for two distinct purposes:

1) to show the defendant’s reasonable apprehension of danger which would justify his conduct; and
2) to help determine who was the aggressor in the conflict.

1 Wigmore on Evidence, § 63 (3rd ed. 1940); McCormick on Evidence, § 295 (2nd ed. 1972). There is a distinction between these two purposes and each has a different prerequisite to admissibility and a differing scope. See, generally, 37 La.L.Rev. 1166 (1977).

As pointed out in Lee, when the evidence is sought to be introduced to show the accused’s state of mind, it must be shown that the defendant knew of the victim’s prior threats or reputation. Once it is shown that defendant had such knowledge, the scope of evidence allowed to indicate the victim’s character is not limited to evidence of general reputation, but includes evidence of specific acts. State v. Lee, supra. See also, State v. McMillian, 223 La. 96, 64 So.2d 856 (1953); 2 Wigmore on Evidence § 248 (3rd ed. 1940). The testimony of Mr. Winn in the present case, relative to the hostile act of the victim toward a third party on the day in question, would not be admissible for the purpose of establishing apprehension on the part of defendant since defendant had no knowledge of the incident.

On the other hand, when evidence of the victim’s dangerous character (character evidence) is sought to be introduced by a defendant for the second purpose, i. e. to prove that the victim was the aggressor, there is no requirement that the defendant have knowledge of the victim’s prior acts or reputation. As Professor Wigmore explains it:

“The reason for the hesitation, once observable in many Courts, in recognizing this sort of evidence, [i. e. character evidence to prove aggression] and the source of much confusion upon the subject, was the frequent failure to distinguish this use of the deceased’s character from another use, perfectly well-settled, but subject to a peculiar limitation not here necessary, — the use of communicated character for violence to show the reasonableness of the defendant’s apprehension of violence . . . . As the purpose there is to show the defendant’s state of mind, it is obvious that the deceased’s character, as affecting the defendant’s apprehensions, must have become known to him; i. e. proof of the character must indispensably be accompanied by proof of its communication to the defendant; else it is irrelevant. In the present use, [i. e. character evidence to prove aggression] this additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief.” 1 Wigmore on Evidence, § 63, at 470-71 (3rd ed. 1940)

However, consistent with this evidentiary rule which is not premised on the defendant’s knowledge of the victim’s character, there still remains the general rule of evidence that character, whether good or bad, “depends upon the general reputation that a man had among his neighbors . . . .” R.S. 15:479. Under this rule proof of a victim’s character tending to prove which person is the aggressor in a conflict must be established by the general reputation of the victim, not by specific acts. Only when victim-character evidence is offered to prove the state of mind of the defendant can such evidence consist of testimony of specific acts by the victim, and then, as we have said, such acts must be known by the defendant. State v. Lee, supra; 37 La.L. Rev. 1166 (1977). For this reason, the testimony of Mr. Winn relative to the hostile act of the victim with respect to a third party was inadmissible for the purpose of establishing who was the aggressor in the conflict with defendant because it was beyond the scope of evidence permitted for that purpose. R.S. 15:479. Only evidence of general reputation, not evidence of specific acts or personal opinion, is admissible to establish who was the aggressor in the conflict.

We therefore find that the trial court was correct in admonishing the jury to disregard the testimony of Mr. Winn relative to a specific prior hostile act by the victim which was not known to the defendant at the time of the shooting. This assignment lacks merit.

Decree

For the foregoing reasons the conviction and sentence of the defendant Alfred Boss, Jr. is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. John Wayne MULLINS.
    No. 60026.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      John Barkley Knight, Jr., Winnesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

John Wayne Mullins was charged by bill of information with the crime of simple burglary in violation of La.R.S. 14:62. After trial by jury, he was found guilty as charged and was sentenced to serve three years at hard labor. On appeal, defendant relies on eight assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3, 4 AND 5

Defendant contends the trial judge erred in admitting in evidence, over his objections and motions for mistrial, the testimony of various state witnesses relative to his admissions of guilt prior to the establishment of the corpus delicti of the crime.

At trial, Royce Manning, a state witness, testified that on November 26, 1976, he parked and locked his pickup truck, in which he had a tape player, some oil, wrenches and cartons of cigarettes, while he went deer hunting. The witness stated that, because a vent window on the driver’s side of the vehicle had been broken previously, cardboard had been placed over the opening to prevent rain from damaging the interior of the truck. He testified that he had left a key to the truck with his brother, Troy Sam Manning, so that he might drive his vehicle home. Upon his return two days later, Manning discovered that the tape player and the other items had been stolen from the truck. He testified that he later learned from a friend that his tape player was at Ralph Weems’ house where defendant also resided. After relating that he called defendant at his home to verify that the tape player was there, the witness was then asked by the state what defendant told him. Defendant objected to this question on the ground that any admission made by him to Manning was inadmissible since the state had not proven the corpus delicti of the crime in that there was no proof of an unauthorized entry of the truck, an essential element of simple burglary. The objection was overruled. The prosecutor repeated his prior question to the witness who responded that defendant admitted to him that he had removed the object from the vehicle to prevent it from being stolen. Defendant then moved for a mistrial on the ground previously urged as the basis for his objection. The motion was likewise denied.

The state then called Troy Sam Manning who testified that, when he went to pick up his brother’s truck, he noticed that the cardboard over the side window had been displaced and the door on the driver’s side of the truck was unlocked. He then observed that the tape player had been removed.

Ralph Weems testified that he learned two weeks after the burglary that defendant had the tape player in his possession. Over repeated defense objections and motions for mistrial on the same ground previously urged, Weems stated that defendant admitted that he had taken the tape player from Manning’s truck.

It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti. State v. Freetime, 334 So.2d 207 (La.1976); State v. Sellers, 292 So.2d 222 (La.1974); State v. Brown, 236 La. 562, 108 So.2d 233 (1959); State v. Calloway, 196 La. 496, 199 So. 403 (1940); State v. Morgan, 157 La. 962, 103 So. 278 (1925).

In the present case, we consider that the corpus delicti of the crime charged, i. e., simple burglary of the pickup truck, was proved prior to the introduction in evidence of defendant’s admissions of guilt. This proof was established by evidence independent of defendant’s admissions. State v. Carson, 336 So.2d 844 (La.1976). Hence, there is no merit to defendant’s contention. But, even assuming arguendo that the admissions were introduced in evidence prior to the establishment of the corpus delicti, we nonetheless find no substance to defendant’s complaint. Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible. La.Code Crim.P. art. 773. Hence, the order of proof is left to the determination of the offering party subject to the general discretion of the court. Although the better practice is to require the establishment of the corpus delicti before an admission or confession is admitted in evidence, the law does not require proof of the corpus delicti as a condition precedent to the introduction of evidence, such as an admission or confession, to connect the accused with the crime charged as long as proof of the corpus de-licti is subsequently established during trial. State v. Odom, 247 La. 62, 169 So.2d 909 (1964); State v. Gani, 157 La. 235, 102 So. 319 (1924); State v. Hill, 135 La. 625, 65 So. 763 (1914); State v. Gebbia, 121 La. 1083, 47 So. 32 (1908). Hence, the trial judge properly admitted defendant’s admissions in evidence.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

In Assignment of Error No. 6, defendant contends the trial judge erred in admitting in evidence his taped confession on the grounds that it was introduced prior to the establishment of the corpus delicti; the confession was not freely and voluntarily made by him; and the confession was not admitted in its entirety. In Assignment of Error No. 7, defendant contends the trial judge erred in denying his motion for mistrial based upon the inadmissibility of his confession on the same grounds as above.

Defendant’s first basis of challenge to the admissibility of the confession was previously considered in Assignments of Error Nos. 1, 2, 3, 4 and 5 and, for the reasons assigned therein, is without merit.

During trial, outside the presence of the jury, a suppression hearing was conducted. Houston Seymour, a member of the sheriff’s department, testified that he questioned defendant with respect to the instant crime on December 20, 1976, shortly after his arrest at which time defendant was advised of his Miranda rights and signed a waiver of rights form. Defendant was again informed of his rights prior to the tape recording of his statement. Seymour stated that defendant was not threatened or promised anything to make him confess to the crime.

Defendant testified that he was brought to the sheriff’s office by Deputy Sheriff John H. Matthews who en route warned him that he had “better not be holding back” for if he did Matthews would see to it that he would get “a lot of time out of this deal.” Defendant further testified that, while alone with Matthews in the interrogation room when Seymour had left to get a tape to record his confession, Matthews again admonished him not to hold anything back. He stated that throughout the interrogation Matthews looked threateningly at him and, as a result of the menacing remarks and threatening expressions, he was coerced into confessing to the crime. Although he admitted that he was never intimidated by Seymour, defendant testified that he did not report Matthews’ threats to Seymour because of his fear of Matthews.

To rebut defendant’s testimony, the state called Deputy Sheriff Matthews who testified that, although he could not recall if he had arrested defendant and taken him to the sheriff’s office, he did not threaten or promise defendant any favor in an attempt to induce him to confess. Specifically, he denied that he threatened defendant into telling the truth or looked menacingly at him during the preliminary interrogation. In fact, Matthews stated that he was never alone with defendant in the interrogation room since he left the room with Seymour and did not return to the room during the taping of defendant’s confession.

At the conclusion of the suppression hearing, the trial judge found that the confession had been freely and voluntarily made by defendant and was therefore admissible. The trial judge further ruled that, since a portion of the taped confession contained an inadmissible reference to another crime committed by defendant, that portion of the confession would have to be deleted before the confession was introduced in evidence. Defendant objected to this ruling arguing that the confession had to be introduced in its entirety, whereupon, the judge inquired of defendant whether he desired the entire confession to be received in evidence. Defendant responded by stating that if the entire confession was admitted in evidence, he would move for a mistrial since the confession contained a prohibited reference to another crime. Over defense objection, the confession was received in evidence with the portion referring to the other crime deleted.

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453; State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Cotton, 341 So.2d 355 (La.1976). A confession is not rendered inadmissible by the fact that law enforcement officers exhort or adjure an accused to tell the truth provided that the exhortation is not accompanied by an inducement in the nature of a threat or one which implies a promise of reward. State v. McAllister, 244 La. 42, 150 So.2d 557 (1963); State v. Ferguson, on rehearing, 240 La. 593, 124 So.2d 558 (1960); State v. Williams, 129 La. 215, 55 So. 769 (1911). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Hutto, supra; State v. Adams, supra; State v. Ross, supra; State v. Demourelle, 332 So.2d 752 (La.1976); State v. Sims, 310 So.2d 587 (La.1975).

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been fully advised of his Miranda rights. Accordingly, the trial judge did not err in admitting the confession in evidence.

Lastly, we consider defendant’s contention that the confession, a portion of which was deleted since it contained a prohibited reference to another crime, was improperly admitted in evidence at trial since it was not introduced in its entirety as required by La.R.S. 15:450. During trial, defendant indicated that, if the confession was introduced in its entirety, he would move for a mistrial since the confession included a reference to another crime which was not admissible under La.R.S. 15:445 and 446. For this reason, the trial judge allowed the introduction of only that portion of the confession dealing with the crime charged.

This court has previously addressed the contention asserted by defendant in State v. Snedecor, 294 So.2d 207 (La.1974):

Pretermitting the inconsistency of defendant’s position, we held recently in State v. Haynes, 291 So.2d 771 (1974) that ‘a party defendant is entitled to insist upon introduction of the entirety of a statement sought to be used against him, although of course he may waive the benefits of the protective statute.’ Thus, in keeping with the restrictions imposed in Sections 445 and 446, the trial court allowed introduction of only that portion of the statement dealing with the charged crime. Defendant, of course, could have required that the whole statement be introduced. This, however, is his choice to make. If he decides that the evidence of other crimes would outweigh the possible exculpatory value, then he may waive his right to have the whole statement introduced. The third alternative, that of keeping the whole statement out, is not available to defendant, unless, of course, the confession itself is not admissible.

See also, State v. Link, 301 So.2d 339 (La.1974).

In the instant case, defendant could have required that his entire confession be introduced in evidence, but in doing so, he would thereby have waived his right to have excluded evidence of the other crime allegedly committed by him. This he declined to do. Under these circumstances, we find that the trial judge properly admitted in evidence only that portion of defendant’s confession which pertained to the crime for which defendant was being tried.

Assignments of Error Nos. 6 and 7 are without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant moved for a mistrial on the ground that a state witness had conversed with another state witness during the course of trial in violation of an order of sequestration issued pursuant to La.Code Crim.P. art. 764. The motion was denied by the trial judge. Defendant assigns this ruling as error.

At the beginning of trial, at defendant’s request, the judge ordered the witnesses sequestered. At the suppression hearing conducted during trial outside the presence of the jury, Deputy Sheriff John H. Matthews did not recall arresting and bringing defendant to the sheriff’s office. Subsequently, in the presence of the jury, he stated that he did in fact arrest defendant on December 20, 1976 at Ralph Weems’ residence and transport him to the sheriff’s office. However, he denied that he threatened or coerced defendant in any manner to confess to the crime. On cross-examination, Matthews admitted that he had not personally checked his records to determine if he had arrested defendant on the day in question but rather had a member of his office check them. He further stated that he also asked Ralph Weems, another state witness, whether he (Matthews) had in fact arrested defendant at Weems’ house to which Weems responded in the affirmative. Defendant then moved for a mistrial on the ground that Matthews had violated the order of sequestration by discussing the facts of the case with another witness. The trial judge denied the motion.

The rule providing for sequestration of witnesses is contained in La.Code Crim.P. art. 764 which provides:

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

The purpose of this article requiring sequestration of witnesses is to prevent their being influenced by testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. State v. Bell, 346 So.2d 1090 (La.1977); State v. Ardoin, 340 So.2d 1362 (La.1976); State v. Batts, 324 So.2d 415 (La.1975); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971). This provision vests discretion in the trial judge as to the disqualification of a witness when the rule of sequestration has been violated. State v. Calloway, 343 So.2d 694 (La.1976); State v. Ardoin, supra; State v. Baker, 338 So.2d 1372 (La.1976); State v. Badon, 338 So.2d 665 (La.1976); State v. Batts, supra; State v. McKinney, 302 So.2d 917 (La.1974). The trial judge’s ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Calloway, supra.

In the instant case, the witness’ testimony was offered to rebut defendant’s assertion that his confession was not freely and voluntarily given since he was threatened by Matthews while being taken to the sheriff’s office as well as during interrogation. In violating the order of sequestration, Matthews received information from another witness pertaining to defendant’s arrest which information was readily available and in fact was obtained by him through a review of his records. Moreover, this information was beneficial to defendant’s case since it established that Matthews was with defendant when defendant was transported to the sheriff’s office, as defendant had alleged in his testimony, and consequently Matthews had the opportunity to threaten defendant to coerce him to confess. Under these circumstances, defendant was not prejudiced by the violation of the order of sequestration: State v. Ardoin, supra. Hence, the trial judge did not abuse his discretion in denying defendant’s motion for mistrial on this ground.

Assignment of Error No. 8 is without merit.

DECREE

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

      . The rule adopted by the Fifth Circuit is that a confession may be introduced into evidence before the corpus delicti has been proven but there must be proof at some stage of the trial that a crime has in fact been committed. United States v. Khandjian, 489 F.2d 133 (5th Cir. 1974).


text:
    Janis Roy CAROLLO et al. v. Barbara WILSON and New Orleans Public Service, Inc.
    No. 60079.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      A. R. Christovich, Jr., New Orleans, for defendants-respondents.
    J. Wayne Mumphrey, Tonry, Mumphrey & Dragon, Chalmette, for plaintiffs-applicants.
   MARCUS, Justice.

Janis R. Carollo, wife of Anthony J. Car-ollo, and Anthony J. Carollo, appearing as head and master of the marital community existing between him and Janis R. Carollo and as administrator of the estates of his three minor children, Charles A. Carollo, Scott Carollo and Anthony J. Carollo, Jr., instituted suit against Barbara Wilson and New Orleans Public Service, Inc. seeking damages for personal injuries and recovery for property damages resulting from a collision between a station wagon, operated by Mrs. Carollo and containing the said minor children as passengers, and a bus, owned by NOPSI and operated by Barbara Wilson, at the intersection of North Claiborne Avenue and Desire Street in New Orleans. The intersection was controlled by an electric traffic signal. Trial by jury resulted in a general verdict in favor of Janis R. Carollo in the sum of $500,000; Anthony J. Carollo, as administrator of the estates of Charles A. Carollo in the amount of $1,000,000, Scott Carollo in the amount of $20,000, and Anthony J. Carollo, Jr. in the amount of $300, and against defendants in solido. Trial judge signed a judgment in accordance with the verdict of the jury. Defendants appealed.

Court of appeal first concluded that the jury’s finding on liability was fully supported by the record. On the question of quantum, the appellate court found that the jury had abused its much discretion in fixing damages for Janis R. Carollo, Charles A. Carollo and Scott Carollo. Accordingly, the court reduced the awards for Janis R. Carollo from $500,000 to $80,000, Charles A. Carollo from $1,000,000 to $400,000, Scott Carollo from $20,000 to $10,000. The court of appeal expressed the opinion that the reductions were to the maximum amounts reasonably within the discretion of the jury. The other awards were not disturbed. Plaintiffs were assessed the costs of appeal. On application of plaintiffs, we granted certiorari to review the correctness of the appeal court’s decision reducing these three awards.

Plaintiffs contend that the court of appeal erred in finding that the jury abused its discretion in its awards for Janis, Charles and Scott Carollo and in reducing those awards. Plaintiffs also contend the appeal court erred in assessing the costs of appeal against them. We first address the quantum issue.

The courts of appeal have a constitutional duty to review the law and facts and thereafter render a judgment on quantum based on the merits, determining whether the jury has abused its “much discretion” that the law accords it in awarding damages. La.Const. art. 5, § 10(B); La.Civil Code art. 1934(3); Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976). Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Anderson v. Welding Testing Laboratory, 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974). In the event the appellate court finds from the record an abuse of discretion, the award may be disturbed by lowering it to the highest point which is reasonably within the discretion afforded the trier of fact. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Coco v. Winston Industries, Inc., supra.

Accordingly, in the instant case, we must first examine the record to determine whether the record clearly reveals that the jury abused its discretion in its awards for Janis, Charles and Scott Carollo. If we find that the jury abused its discretion, the awards should be reduced to the maximum amounts which are reasonably within the discretion of the jury. Only then can we determine whether the court of appeal erred in making the reductions which it did.

JANIS R. CAROLLO

After the collision, Mrs. Carollo was pinned under the dashboard of the car with her cheek against the car’s courtesy light. The light was on, and she sustained a third degree burn on her cheek. She also suffered a compression fracture of the fifth cervical vertebrae as well as several facial lacerations. She was hospitalized for about twelve days following the accident. Although Mrs. Carollo testified that she sustained five broken ribs and required 400 stitches to repair facial lacerations, the record contains no medical evidence in support of these contentions.

Dr. William J. Pollock, a plastic surgeon, treated Mrs. Carollo for the burn and lacerations on her face. He testified that she incurred a large circular third degree burn on her left cheek. He also found paralysis of the frontal zygomatic branch of the left facial nerve which resulted in her being unable to close her eye tightly. Dr. Pollock testified that the burn was not severe in terms of body s.urface affected (less than 1%) but was severe in terms of depth and location. The wound covered an area of about two inches in diameter. During the healing process, the wound granulated and closed rapidly. At this point in time, Dr. Pollock determined that it would not be necessary to do a skin graft. After the wound had completely healed, there remained a large oval shaped scar. Dr. Pollock then decided to surgically revise the scar to a linear shaped one. He considered that the latter would be far less noticeable, a cosmetic improvement. The procedure, similar to a cosmetic face lift, was performed under local anesthetic due to Mrs. Carollo’s allergic reaction to various drugs. The operation lasted about two hours and required only one day of hospitalization. Subsequent examinations revealed that the wound was healing well; the stitches were removed two weeks after surgery. Although Mrs. Carollo would have a permanent linear scar, Dr. Pollock opined that its appearance would improve somewhat with time and that cosmetics would help reduce its visibility.

Dr. Kenneth L. Veca, orthopedic surgeon, treated Mrs. Carollo for a compression fracture of the fifth cervical vertebrae. He testified that the fracture was stable and presented no danger to the spinal cord. He prescribed a four-poster brace which she wore for about a month. Thereafter, he prescribed a soft cervical collar which was worn by Mrs. Carollo for another five weeks. Mrs. Carollo complained of neck pain and headaches; Dr. Veca testified that the complaints were not unjustified. He opined that she would probably develop arthritis in the neck due to the injury and the degenerative process was already apparent. He estimated her disability at 15% of the whole body.

Drs. Irvin Redler and Wilmot Ploger, orthopedic surgeons, testified that their examinations revealed that Mrs. Carollo had sustained a compression fracture of the fifth cervical vertebrae which had healed well. They estimated the residual disability from 10-15% of the cervical spine (neck). Dr. Pollock also confirmed Dr. Veca’s prognosis of the degenerative arthritic changes.

After careful review of the record, we find that the record clearly reveals that the jury abused its discretion in awarding $500,-000 to Janis R. Carollo for the injuries sustained by her. We consider the maximum amount reasonably within the discretion of the jury to be $80,000. Accordingly, we do not find that the court of appeal erred in reducing the award to this amount.

CHARLES A. CAROLLO

Charles was seven years old at the time of the accident and was seriously injured. The medical evidence in connection with these injuries is voluminous but generally not in dispute. Hence, we do not consider it necessary to describe it in detail although it was carefully considered by us in evaluating quantum. Charles’ gravest injury was brain damage. He remained in a coma for approximately two months following the accident. During this time, several complications developed, including urinary and lung infections and severe weight loss. Treatment was primarily supportive care: tracheostomy tube, urinary catheter, respirator, and feeding intravenously and through a gastronomy tube. Unexpectedly, Charles regained consciousness and was allowed to leave the hospital and go home where he was still fed through a gastronomy tube for some time. Charles’ brain injury resulted in spastic paralysis, causing a 100% permanent disability of the left upper extremity and a 70% permanent disability of the left lower extremity. He can now walk unassisted but must wear a brace on both his left arm and leg. There was testimony about possible future operations which might render his left hand and leg more functional by fusing the wrist and ankle joints; however, it was opined that the operations would not significantly decrease his disability. The operations would probably eliminate the need for the leg brace but not that of the hand brace.

Evidence was also presented to establish the effect of the brain damage on Charles’ intellectual ability and personality. The record reveals that he was at least of average intelligence prior to the accident but became dull-normal thereafter. ' A psychologist characterized his personality after the accident as passive-aggressive, i. e., one of hostility directed toward himself. The record contained medical testimony to support the fact that his personality changed after the accident and that this change was attributed to brain damage.

Damages were also sought for Charles’ loss of earning capacity. Expert testimony was adduced to the effect that his employment possibilities were severely limited by his mental and physical disabilities. An economist testified regarding loss of wages based on a work-life expectancy of 43.4 years. A 3% annual productivity factor and a 4% annual inflation factor were used in the calculations. Charles’ earning capacity was computed on the basis of both a $2.30 per hour minimum wage and a $188 per week average manufacturing wage in Louisiana. The economist determined that the total work-life minimum wages ($1,240,-476.62) discounted at 5% would entitle him to $303,782.05 today or, if discounted at 7%, to $192,999.37. On the other hand, the total work-life average manufacturing wages ($2,536,938.02) discounted at 5% would entitle him to an amount of $620,772.24 today or, if discounted at 7%, to $394,390.11.

As previously indicated, the jury awarded $1,000,000 for Charles. The court of appeal calculated his loss of wages and estimated his maximum loss of earnings based on the evidence to be about $200,000. Moreover, the appeal court noted that counsel argued to the jury, without proper foundation in evidence, that Charles’ loss of earnings were $620,000. The appeal court also noted that counsel’s argument for general damages based on a money value per minute for the rest of his life may be an explanation for the excessive verdict.

We are unable to determine how much of the $1,000,000 awarded for Charles was attributed to loss of wages. However, we do feel that the jury might well have erred in failing to give proper credit for wages which Charles could possibly earn. In any event, after carefully reviewing the entire record, we find that the record clearly reveals that the jury abused its discretion in awarding $1,000,000 for Charles. We further find that the maximum amount reasonably within the discretion of the jury is $600,000. Accordingly, the court of appeal erred in reducing the award below this amount to $400,000.

SCOTT CAROLLO

Scott, four years old at the time of the accident, had impaired hearing. His hearing aid was broken in the collision. He was hospitalized for about seven days. While Scott had some facial lacerations resulting in minimal scaring, his most serious physical injury in the accident was a bilateral basilar skull fracture which healed without incident or any residual problem.

Our review of the record convinces us that the record clearly reveals that the jury abused its discretion in its award of $20,000 for Scott. We consider that the maximum amount reasonably within the discretion of the jury is $10,000. Hence, the court of appeal did not err in reducing the award to this amount.

COSTS

Defendants took an appeal from the jury verdict alleging error both in its finding on liability and the quantum of each of the five awards. Plaintiffs did not appeal. The court of appeal did not reverse the jury’s verdict on liability but did substantially reduce three of the five jury awards. The court of appeal taxed the entire costs of the appeal court against plaintiffs.

La.Code Civ.P. art. 2164 accords the appellate court discretion to tax the costs of the appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

Plaintiffs contend that the court of appeal abused its discretion in taxing the entire costs of the appellate court against them since only defendants appealed and were only partially successful in their appeal. We agree. We believe that an equitable allocation of the costs of the appeal under the circumstances is an equal division between plaintiffs and defendants, one-half assessed to each.

DECREE

For the reasons assigned, the judgment of the court of appeal reducing the award for Charles A. Carollo to $400,000 is amended by increasing that award to $600,000; the judgment taxing all costs of the court of appeal to plaintiffs is amended to assess one-half thereof to plaintiffs and one-half thereof to defendants. In all other respects, the judgment of the court of appeal is affirmed. The costs of this court are also equally assessed between plaintiffs and defendants.

SUMMERS, DIXON and DENNIS, JJ., concur in part and dissent in part and would simply affirm the court of appeal judgment.

      . Verdict was also rendered in favor of Anthony J. Carollo and against defendants, in solido, for the sum of $34,000 for past and future medical and incidental expenses for the children and in the sum of $5,500 for past and future medical, property and incidental expenses for his wife. Any questions relating to these awards are not relevant here for reasons hereinafter stated.

      . Judgment was also rendered in favor of plaintiff in reconvention, Commercial Union Insurance Company, and against defendants in re-convention, Barbara Wilson and New Orleans Public Service, Inc., in the sum of $2,525. Any question relating to this portion of the judgment is not relevant here for reasons hereinafter stated.

      . 345 So.2d 601 (La.App. 4th Cir. 1977).

      . 349 So.2d 336 (La.1977). It is well settled that a judgment will not be amended either to benefit a party who has not applied for review or to the prejudice of a party at whose instance the writ issued where the opposing party has failed to make application seeking such an amendment. Gulotta v. Cutshaw, 283 So.2d 482 (La.1973). Since defendants did not apply to this court for á writ of review, we do not consider the issue of liability nor whether the awards fixed by the court of appeal should be reduced below those amounts.