author: BOARDMAN, Judge.

text:
    James Howard REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 76-518.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.

      Jack 0. Johnson, Public Defender, Bar-tow, and A. Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

In this appeal appellant alleges that the trial court failed to afford him an opportunity to withdraw his plea after the judge elected to reject the terms of a plea bargain.

Pursuant to a negotiated plea appellant pled guilty to attempted robbery and aiding an escape. The judge stated that appellant was to be sentenced to no more than three years on each charge to run concurrently. When informing appellant of his right to a presentence investigation the court told appellant that if the results of the investigation were favorable the sentence imposed would be from three years imprisonment to probation.

Following the presentenee investigation appellant was sentenced to three years for the escape charge and was placed on probation for fifteen years for the attempted robbery. The term of probation was to begin to run after completion of the sentence. Appellant moved to correct the sentence, and at the hearing on the motion argued that the imposition of probation was a violation of the plea bargain. He did not at that .time seek to withdraw his plea. The court denied the motion. The trial judge and appellant disagreed as to whether fifteen years probation was less harsh than three years imprisonment.

In several recently decided cases we have held that when a trial judge rejects the terms of a plea bargain he has an affirmative duty to so advise the defendant and have him affirm his plea or withdraw it. E. g., Moore v. State, 339 So.2d 228 (Fla.2d DCA 1976) (opinion filed October 6,1976, Case No. 75-1716, not yet reported); Kiefer v. State, 295 So.2d 688 (Fla.2d DCA 1974). See also Adams v. State, 328 So.2d 48 (Fla. 1st DCA 1976); Enos v. State, 272 So.2d 847 (Fla. 4th DCA 1973). Where there is confusion or legitimate disagreement as to the terms of the plea negotiation the trial court has the same affirmative duty to inquire as to whether the defendant desires to change his plea. Morton v. State, 317 So.2d 145 (Fla. 2d DCA 1975). In view of the disagreement in the case before us as to the terms of the plea bargain appellant should have been called upon to affirm or withdraw his guilty pleas.

Accordingly the judgments and sentences are vacated, and the case is remanded to allow appellant the opportunity to withdraw his plea.

REVERSED and REMANDED.

McNULTY, C. J., and GRIMES, J., concur.

      . At the time of the offense the maximum sentence for attempted robbery was five years. §§ 813.011, 776.04(2), 775.082(4)(d), Fla.Stat. (1973). Accordingly the fifteen-year term of probation was improper. Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). We assume that appellant will be correctly advised of the maximum sentence when he is called upon to replead. If appellant chooses not to withdraw his plea we trust that the sentence will be corrected on remand.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roger A. NICKERSON, Appellant, v. BRIGGS-INMAN ASSOCIATES, INC., a Florida Corporation, and Richard W. Briggs, Jr., Individually, Appellees.
    No. 75-1571.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Milledge & Bell, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for ap-pellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant appeals a summary final judgment entered in favor of the appellees in an alleged breach of contract action. The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by the movants for the summary judgment.

Reversed and remanded for further proceedings.


text:
    The STATE of Florida, Appellant, v. Pauline Ann ANDREWS, Appellee.
    No. 76-36.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Richard E. Gerstein, State Atty., and John H. Lipinski, Asst. State Atty., for appellant.
    Phillip A. Hubbart, Public Defender, and Thomas G. Murray, Asst. Public Defender, Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

The appellant, State of Florida, has appealed from an order granting appellee’s motion to dismiss a count in an information charging her with carrying a concealed firearm.

We have carefully considered appellant’s contentions on appeal in the light of the record on appeal, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated.

Affirmed.


text:
    Catalino GONZALEZ, Appellant, v. Pilar GONZALEZ, Appellee.
    No. 76-298.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Rehearing Denied Dec. 21, 1976.
    Redfearn & Simon, Miami, for appellant.
    Gaine & Gaine, Richard M. Gale, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Kenneth KASHA, Appellant, v. Patricia KASHA, Appellee.
    No. 76-664.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Morton S. Braverman, North Miami Beach, and Dimitry N. Alexander, Miami, for appellant.
    Adams, George, Lee & Schulte and David L. Willing, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Gleim v. Gieim, 176 So.2d 610 (Fla.3rd DCA 1965); Bostwick v. Bostwick, 201 So.2d 779 (Fla.4th DCA 1967); and Cohen v. Cohen, 321 So.2d 97 (Fla.4th DCA 1975).


text:
    GULFSTREAM STEEL CORPORATION, Appellant, v. CGM VALVE COMPANY, INC., and Lang Afrique Incorporated, Appellees.
    No. 76-906.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Howell, Howell, Liles & Braddock, Jacksonville, and S. William Fuller, Jr., Miami, for appellant.
    Adams, George, Lee & Schulte, Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975).


author: PER CURIAM-.

text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. BB-199.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1976.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   PER CURIAM-.

Appellant appeals a final summary judgment entered in favor of appellee. Our examination of the record reveals the existence of issues of material facts which could not be properly resolved by summary judgment. (Please see Connell v. Sledge, Fla.App. 1st 1975, 306 So.2d 194; Forrest v. Carter, Fla.App. 1st 1975, 308 So.2d 141; Delany v. Breeding’s Homestead Drug Co., Sup.Ct.Fla.1957, 93 So.2d 116; Holl v. Talcott, Sup.Ct.Fla.1966, 191 So.2d 40 and Westinghouse Elec. Sup. Co. v. Midway Shop. Mall, Inc., Fla.App. 3rd 1973, 277 So.2d 809). The summary final judgment here appealed is therefore

REVERSED.

BOYER, C. J., and McCORD and MILLS, JJ., concur.


author: BOYER, Chief Judge. SMITH, Judge

text:
    Denise K. MORPURGO and Marion Williams, Appellants, v. GREYHOUND RENT-A-CAR, INC., a corporation, Appellee.
    No. AA-350.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.

      Andrew G. Pattillo, of Pattillo, MacKay & McKeever, Ocala, for appellants.
    Eurich Z. Griffin, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee.
   BOYER, Chief Judge.

Appellants, plaintiffs in the trial court, appeal from a summary final judgment entered in favor of appellee. Essentially, the issue here considered is whether appellee, a rental car company, was required to give notice to appellants that it was a self-insurer and did not intend to provide uninsured motorist coverage.

Examination of the pleadings reveals that appellant Williams rented an automobile from appellee. The standard form contract which appellant Williams signed contained a provision under which appellee was to obtain and maintain insurance on the leased vehicle in the amount of $100,-000/$300,000 for bodily injury/property damage. Unbeknownst to appellants at the time the contract was signed, appellee had qualified as a self-insurer under the Florida Financial Responsibility law, and had executed and filed with the Florida Insurance Commissioner a notice of rejection of uninsured motorist coverage. During the rental term, an accident occurred in which appellant Williams was driving the leased automobile and appellant Morpurgo was a passenger. The driver of the other automobile involved in the accident was an uninsured motorist. Appellants initially sought benefits under the presumed uninsured motorist coverage afforded by the insurance policy which appellant assumed appellee had obtained. Finding that there was no such insurance policy, appellants alleged that ap-pellee breached its contract to provide liability insurance coverage for them and that, if such insurance had been provided, it would have necessarily included the statutorily required uninsured motorist coverage.

The trial court, in its summary final judgment, relied on Kohly v. Royal Indemnity Co., Fla.App.3rd 1966, 190 So.2d 819, cert. den. Sup.Ct.Fla.1967, 200 So.2d 813. In that factually similar case, our sister court in determining whether rejection of uninsured vehicle coverage by the defendant deprived the plaintiff of such coverage, construed F.S. 627.0851(1) which required automobile liability insurance policies for the protection of persons insured thereunder, “. . . provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage; . ” The court noted, “. However, the law giveth and the law tak-eth away. The first clause of the Statute giveth but the proviso above quoted furnishes a method by which it may be taken away. In the case, sub judice, the ‘insured named in the policy’ rejected the coverage. It therefore did not exist and the plaintiff, when operating the subject vehicle, did not have uninsured vehicle coverage. The problem is one for legislative action, not judicial fiat.” Kohly v. Royal Indemnity Co., at 822.

We believe that the above-quoted language is equally applicable to the instant case. Appellants attempt to distinguish the Kohly case, but we find that said distinctions are not significant. Specifically, appellants point out that in the Kohly case, the rental agency provided the policy of liability insurance which the court construed, whereas in the case sub judice, there is no such liability insurance policy and the primary issue is not whether the insurer breached its insurance policy contract, but whether there was a substantial breach by appellee of its rental agreement and undertaking to provide liability insurance for appellants. However, resolution of that issue is unnecessary because, as noted in the Kohly case, even if appellee had procured a liability insurance policy covering the rental car, the waiver of uninsured motorist coverage would have been effective as to appellants. Moreover, paragraph 11 of the rental agreement clearly provided that appellee would maintain insurance on the rented vehicle in the amounts of $100,000/$300,000 for bodily injury/property damage. There was no specific agreement to provide any other insurance, but only to maintain insur-anee in the stated amount on the rental vehicle, which requirement appellee met by virtue of its status as a self-insurer. Accordingly, the judgment appealed herein is affirmed.

AFFIRMED.

MILLS, J., concurs.

SMITH, J., concurring with opinion.

SMITH, Judge

(concurring):

I agree with appellants that the Kohly decision does not necessarily control this case, for the question there was whether an insurance policy violated Florida statutory law by not giving an insured under the policy, such as the renter of the vehicle in question, an option for uninsured motorist coverage which was made available only to the named insured. The question here is whether Greyhound undertook in the rental contract between the parties to provide uninsured motorist insurance for the benefit of appellants. As the court here has stated, there was no specific agreement to provide such insurance, and the contract does not bear the implication on which appellants rely. I therefore concur in the court’s judgment.


text:
    Pasco BELL and Allstate Insurance Company, Appellants, v. Johnnie Mae WHITE, Appellee.
    No. BB-79.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.
    John N. Boggs of Barron, Redding, Boggs & Hughes, Panama City, for appellants.
    Lynn C. Higby and George P. Daniels of Isler, Higby, Brown & Smoak, Panama City, for appellee.
   PER CURIAM.

Appellants, defendants in the trial court, appeal from a final judgment rendered on a jury verdict favorable to appellee, plaintiff in the trial court, contending that their motion for directed verdict should have been granted.

The accident giving rise to this controversy occurred in the State of Alabama, requiring application of Alabama law. Ap-pellee was a passenger in an automobile owned and operated by appellant Bell and insured by appellant Allstate. The only issue on appellants’ appeal is whether there was any evidence adduced before the jury of such wilful, wanton or gross conduct as to meet the test of the Alabama guest passenger statute. Our examination of the record reveals that there was not and that appellants’ motion for directed verdict should have been granted.

Appellee has cross-appealed, contending that she was a paying passenger, thereby rendering the guest statute inapplicable and that the trial judge erred in granting appellants’ motion for directed verdict as to appellee’s guest passenger status. No useful purpose will be served by a lengthy recitation of the evidence. Suffice to say that our examination of the record, briefs and oral arguments reveals that there was no evidence upon which a jury could have found appellee to have been a paying passenger; therefore the learned trial judge was eminently correct in granting a directed verdict on that issue.

Affirmed in part and reversed in part with directions that judgment be entered for appellants, defendants in the trial court.

BOYER, C. J., and McCORD and MILLS, JJ., concur.


text:
    Willaim C. GRIMSELY, Jr., and Charles Faircloth d/b/a Major Development Company, Appellants, v. FLORIDA UNIVERSAL FINANCIAL CORPORATION, Appellee.
    No. BB-349.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.
    Ferrin C. Campbell, Sr., Crestview, for appellants.
    E. Leo Andrews, Jr., Fort Walton Beach, for appellee.
   PER CURIAM.

Appellants, real estate developers, appeal from a final judgment in favor of appellee, a mortgage broker.

Appellee sued appellants seeking a brokerage commission in the sum of $12,440. Upon being served with process appellants failed to respond whereupon a default followed by a final judgment consequent thereon was entered in the sum of $12,440 plus costs in the sum of $31. Upon motion the default and judgment were vacated and the case was allowed to proceed on the merits, resulting in a judgment in favor of appellee in the sum of $8,000 plus costs. Appellants appealed and appellee cross-appealed.

The record, briefs and oral arguments of able counsel lead us to the conclusion that the points raised by appellants’ appeal are without merit. Appellee’s contention, however, urged by its cross-appeal, that the learned trial judge erred in vacating and setting aside the default and final judgment entered consequent thereon is meritorious.

Although the law favors resolution of cases on the merits, defaults properly entered and judgments thereon may not be set aside absent a showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules. (Metcalf v. Langston, Fla.App. 1st 1974, 296 So.2d 81, cert. dism., Sup.Ct.Fla.1974, 302 So.2d 414) The record of this case reveals no legal reason for appellants’ failure to respond nor does it reveal any legal basis for relieving appellants of the consequences of the default entered against them.

As to appellants’ appeal we affirm. As to appellee’s cross-appeal we reverse and direct that the final judgment entered consequent upon default in favor of appellee and against appellants be reinstated.

IT IS SO ORDERED.

BOYER, C. J. and McCORD and MILLS, JJ., concur.


text:
    Silas GIBSON et al., Appellants, v. L. L. RATCLIFF et al., Appellees.
    No. BB-377.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.
    James E. Moore, Jr., of Moore & Anchors, Niceville, for appellants.
    F. B. Estergren, Fort Walton Beach, David W. Palmer, II, Crestview, for appel-lees.
   PER CURIAM.

We here review a summary judgment arising out of a boundary dispute. The property involved is located in the southwest quarter of the southwest quarter of Section 26, Township 1 South, Range 24 West in Okaloosa County and is adjacent to the property involved in Gibson v. Wright, Fla.App. 1st 1965, 179 So.2d 245. The original government survey was made in 1826. In 1937 a resurvey was completed. As this Court stated in Gibson v. Wright, supra:

“The 1937 United States Survey could not alter the property lines and property rights acquired under an existing United States Government Survey of a prior date.” (179 So.2d at page 247)

Our examination of the record in this case reveals that there is an issue of fact as to whether the 1937 survey re-established the section lines and corners as originally established in 1826 or whether there is a discrepancy. That issue is material and could not have been properly resolved by summary judgment. There are also issues of material facts relating to appellants’ standing to bring the action giving rise to this appeal and as to the defense of estoppel asserted by appellees.

The law relating to summary judgments is well established in Florida and no useful purpose will be accomplished by recitation here. (See Connell v. Sledge, Fla.App. 1st 1975, 306 So.2d 194)

We express no view as to resolution of this case on the merits.

REVERSED.

BOYER, C. J., and McCORD and MILLS, JJ., concur.


author: McCORD, Judge.

text:
    Lenora Jane MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. Y-484.
    District Court of Appeal, First District.
    Oct. 26, 1976.
    Rehearing Denied Dec. 16, 1976.
    Steven E. Rohan and Bernard Nachman, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Andrew W. Lindsey, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant, Lenora Jane Marshall, was indicted for first degree murder of her husband and was found guilty by jury of second degree murder. She appeals her judgment and sentence. She contends that the court erred in refusing to admit in evidence a stenographically reported statement which a court reporter witness for the state read into evidence and testified was an accurate transcript of a statement of appellant taken before her. Appellant also contends that, she having prior to trial filed a notice of intent to rely on insanity as a defense, the court erred in precluding the jury’s consideration of the question of insanity. In addition, appellant contends that the evidence was insufficient to sustain the conviction.

As to the trial court’s refusal to admit the stenographically reported statement, appellant contends that it was error to deny her offer of the statement in evidence even though she did not read the stenographer’s record after it was transcribed and did not sign or adopt it in any way as her own statement. She contends that such was not necessary because at the close of the statement it affirmatively appears therefrom that she was told she had the right to read the statement after its being typed or that she had the right to waive the reading of it, and she then waived it. The statement in question was an alleged confession by appellant in which she allegedly gave her version of the homicide.

The law on this subject is well stated in a quotation from 23 C.J.S. Criminal Law § 833, pp. 237-238, which is contained in the court’s opinion in Williams v. State, 185 So.2d 718, 719 (3 DCA 1966):

“If a person orally confesses to a crime, and his statement or words are reduced to writing by another person, the resulting written instrument is not admissible as a written confession until the confessor acknowledges the correctness of the writing. A written confession may be admissible if written or signed by the confessor, or if it was read to or by him, and acknowledged to be correct. If a statement purporting to be a confession is given by accused, and is reduced to writing by another person, before the written instrument will be deemed admissible as the written confession of accused, he must in some manner have indicated his acquiescence in the correctness of the writing itself. If the transcribed statement is not read by or to accused, and is not signed by accused, or in some other manner approved, or its correctness acknowledged, the instrument is not legally, or per se, the confession of accused; and it is not admissible in evidence as the written confession of accused. The written instrument constitutes merely a memorandum of what was said and the only confession that does exist is the oral confession of accused. The oral testimony of witnesses is the only admissible evidence of the purported confession.”

See also 2 Wharton’s Criminal Evidence, § 340, p. 10 (12th Ed. Anderson, 1955); 2 Jones on Evidence, § 390, p. 742 (Grad 5th Ed. 1958); and 23 A.L.R.2d Anno. “Admissibility in Evidence of Unsigned Confession” 919. While it is usually the defendant who objects to the introduction by the state of such stenographic transcript, we know of no reason why the transcript would be any more admissible, where the state is the objecting party rather than the defendant. It is the fact that the defendant (appellant) has not acknowledged it to be a correct transcript of a statement or confession made by her that renders it inadmissible. The testimony of the witness that appellant waived reading the alleged statement prior to its being transcribed does not constitute an acknowledgment by her that the alleged statement is correct. It is only when a defendant acknowledges the transcription of the statement as a correct transcription of what she said that the transcription becomes admissible in evidence. The trial judge in ruling the transcription of the alleged statement inadmissible was eminently fair to appellant in that he allowed her counsel in his closing arguments to read to the jury any portions of the alleged statement which he desired to read to them.

As to appellant’s second contention regarding the question of her sanity, at the conclusion of appellant’s case the court ruled that a prima facie case of insanity had not been shown and that, therefore, the state need not put on rebuttal evidence to show sanity. Also, the trial judge subsequently declined to charge the jury on insanity. The only evidence presented which might tend in any way toward showing insanity was evidence that a short time prior to and at the time of the homicide appellant was in a highly emotional state; that she and the decedent had been in a fight over decedent’s daughter and that he and his daughter had moved out; that he came to see appellant every night until a week before the shooting; that he then telephoned her and told her that he was living with another woman and wanted a divorce; that on the day before the homicide (the homicide occurred during the early morning hours of January 20, 1975) he had promised to come over to her place but then called and cancelled the appointment. Appellant’s father testified that at 1 a. m. on the morning of the homicide, appellant telephoned him and asked to have his gun for protection; that she came over and got the gun which had three bullets in it. Appellant’s ex-husband testified that around 3 a. m. the morning of the homicide appellant telephoned him to come and get the children and told him that she was going to her husband’s and would kill him if necessary; that she was very emotional and told him to call the police and the rescue squad. Decedent’s daughter testified that she and her father moved out from living with appellant following a fight between appellant and decedent; that she and her sister and her father moved into a trailer. She testified that she saw appellant drive by their trailer twice on January 19 and at 3 a. m. on January 20 she was asleep in the trailer with her sister and her father and her mother (who had come to Florida the week before); that she saw appellant drive up and heard her bang on the trailer and tell her father to come out and thereafter appellant broke the glass on the trailer door; that she (the witness) ran to a neighbor’s to call the police; that five minutes later she heard a shot and five minutes thereafter appellant came and said to call the police. The decedent’s ex-wife, who was in the trailer at the time of the homicide, corroborated her daughter’s testimony related above as to the events leading up to the shooting and testified that after her daughter left to telephone the police, decedent dressed and went outside; that shortly thereafter she heard the shot. The evidence shows that during the night of the shooting and at the time of the shooting, appellant was in a highly emotional state, but there was no evidence of insanity under the M’Naghten Rule. There is no evidence that appellant’s mental faculties were such that at the time of the shooting, she could not distinguish right from wrong. The law on this subject is well stated in Evans v. State, 140 So.2d 348, 349 (2 DCA 1962).

“It has long been recognized that sanity is the normal condition of man and that, when charged with a crime, he is presumed to be sane; the mere fact that he has committed a crime is not in itself sufficient to overcome the presumption. Davis v. State, 1902, 44 Fla. 32, 32 So. 822. Thus, in a prosecution for homicide, the defendant has the burden of establishing his plea of insanity by demonstrating that he was legally insane at the time the homicide was committed. McVeigh v. State, Fla.1954, 78 So.2d 694. The State of Florida has long adhered to the “right and wrong” test for the determination of the sanity of a criminal defendant; the test is also referred to as the M’Naghten Rule. See Piccott v. State, Fla.1959, 116 So.2d 626; Davis v. State, supra. This jurisdiction does not recognize that phase of insanity denominated under the title of ‘irresistible impulse’ or ‘moral insanity’ as a defense to a criminal prosecution. The only issue presented under the defense of legal insanity is whether the accused, at the time of the unlawful act alleged to have been committed by him, had a sufficient degree of reason to know that he was doing an act that was wrong. Griffin v. State, Fla.App.1957, 96 So.2d 424; Brock v. State, Fla.1954, 69 So.2d 344; Crews v. State, 1940, 143 Fla. 263, 196 So. 590.”

The same court in Perry v. State, 143 So.2d 528, 531 (2 DCA 1962), made the following statement regarding insanity with which we agree:

“Anger may vitiate prudence; yet it does not constitute insanity. Sanity [sic] must be caused by mental disease. If the defendant has the capacity of distinguishing between right and wrong as to the particular act at the time of the killing, mere emotional insanity or passion or frenzy produced by anger, jealousy or other passion will not excuse him; nor can he discharge himself from responsibility for the homicide by showing that he did the act under the influence of an irresistible impulse. If a person had the capacity of distinguishing between right and wrong, as to a particular act, at the time he does it, moral insanity will not excuse.” (Emphasis added)

As to appellant’s final point, we have examined the evidence and find that it was sufficient to sustain the conviction.

AFFIRMED.

BOYER, C. J., and SCHLEGEL, LEW E„ Associate Judge, concur.


text:
    STATE of Louisiana v. Kenneth CLAVO.
    No. 58328.
    Supreme Court of Louisiana.
    July 26, 1976.
    Reasons Nov. 8, 1976.
    Girard J. Fernandez, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

Because of the exigencies of this case, requiring prompt disposition, we hand down the following decision, the reasons for which will follow in due course:

The ruling of the Criminal District Court for Orleans Parish is affirmed and the case is remanded to the district court for trial as a capital offense. In the event of conviction, imposition of the sentence shall be deferred pending further orders of this court.

DIXON, J., concurs in the result.

SUPPLEMENTAL OPINION

PER CURIAM:

The Grand Jury of Orleans Parish indicted Kenneth Clavo for aggravated rape. LSA-R.S. 14:42. Subsequently, the United States Supreme Court handed down its decision in Roberts v. Louisiana, - U.S. -, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), invalidating the mandatory death penalty in the aggravated rape statute. The defendant then moved to quash the indictment. The trial judge overruled the motion, and on defendant’s application, we granted writs under our supervisory jurisdiction.

On July 26, 1976, this Court affirmed the ruling of the trial court, remanded the case for trial as a capital offense, and instructed the judge, in the event of conviction, to defer sentence pending further orders of this Court.

Since this decree, the United States Supreme Court has denied a rehearing in Roberts v. Louisiana, supra, requiring this Court to consider the question of the proper non-capital sentence for aggravated rape.

The Court has considered the question in a series of decisions and concluded that the proper sentence is now imprisonment at hard labor for twenty years. See State v. Craig, La., 340 So.2d 191 (1976); State v. Lee, La., 340 So.2d 180 (1976); State v. Watkins, La., 340 So.2d 235 (1976).

For the reasons assigned, the district court is instructed, in the event defendant is convicted of aggravated rape, to sentence him to imprisonment at hard labor for twenty years.

SUMMERS, J., see my dissent in State v. Lee, La., 340 So.2d 180.


author: DENNIS, Justice. TATE, Justice.

text:
    STATE of Louisiana v. Elijah WILLIAMS.
    No. 57713.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Elijah Williams, was convicted of attempted armed robbery, in contravention of La.R.S. 14:64, as modified by La.R.S. 14:27, and sentenced to serve thirty-one years at hard labor. He appealed and filed two assignments of error.

ASSIGNMENT OF ERROR NO. 1

Assignment of Error No. 1 complains of the trial judge’s failure to protect him from improper cross-examination by the prosecuting attorney.

On direct examination defendant testified:

u * * *
“Q. Have you ever been convicted of a crime before?
“A. Yes, once.
“Q. For what?
“A. Assault on a government reservation.”

During cross-examination of the defendant the transcript reflects the following occurred:

a * * *
“Q. As a matter of fact, weren’t you convicted of assault?
“[Defense Counsel]:
“Your Honor, I think that’s already been established. I don’t think there’s anything else that can be said legally.
“BY THE COURT:
“He is under cross examination. He can ask the question.
“[Defense Counsel]:
“He already said he was convicted of assault in Florida.
“BY THE COURT:
“I overrule the objection.
“[Defense Counsel]:
“To which ruling I respectfully object and reserve a bill of exceptions, making a part thereof the State’s question, and the testimony taken thereto, and the Court’s ruling.
“BY THE COURT:
“Let the bill be reserved.
“EXAMINATION BY [Prosecuting Attorney]:
“Q. Where did the assault take place?
“A. The assault took place in Texas.
“Q. In Texas, not in Florida?
“A. No, sir.
“Q. Did you have a weapon in your hand?
“A. No, it was a brick.
« * * * >>

Defendant contends that only the fact of his conviction of the prior offense was admissible and that allowance of introduction of additional information relating to this crime was reversible error.

In State v. Jackson, 307 So.2d 604 (La.1975), a majority of this Court determined that there was no error in the cross-examination of a witness which sought to elicit details of an offense for which the witness was convicted for the purpose of proving the actual nature of the crime. In State v. Elam, 312 So.2d 318 (La.1975) this Court unanimously applied the rationale of the Jackson opinion to the cross-examination of a defendant who had taken the stand.

Although I personally disagree with the holding in these cases, since the language of La.R.S. 15:495 seems clearly to militate against such questioning, see, The Work of the Louisiana Appellate Courts for 1974-75 —Criminal Trial Procedure, 36 La.L.Rev. 605, 662 (1976), I will not dissent from the unanimous and very recent ruling of this Court unless other members desire to reconsider the decision.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2 defendant asserts that the trial judge’s denial of his motion for a new trial was erroneous because there was a total lack of evidence to prove an essential element of the offense and because the State failed to carry its burden to prove the defendant’s guilt beyond a reasonable doubt. Our inquiry on this appeal, unlike that of a trial judge, is limited to a determination of whether there is any evidence in the record which, if believed by the jury, would support conviction. State v. Jones, 303 So.2d 486 (La.1974). Our appellate jurisdiction is limited to questions of law only. Art. 5, § 5, La. Const. 1974.

Several patrons, including three federal law enforcement officers, and a bartender, testified that defendant entered Luke’s Bar and Grill at 1022 S. Rampart Street in New Orleans on November 15, 1973, produced a chrome-plated derringer, demanded money and fled after firing two shots toward the back of the building. Defendant did not dispute the State’s evidence that he was shot in the leg by police officers and arrested a short distance from the bar. Nor did he controvert the officers’ testimony that a chrome-plated derringer was found on the ground in the vicinity where he was apprehended. Defendant testified, however, that he had not been in Luke’s Bar and Grill but had gotten off a bus in the area to visit his aunt and that he fled from the officers only because they began shooting at him. The jury was apparently convinced by the State’s witnesses and did not believe defendant’s testimony. From our review of the record we conclude that the verdict is amply supported by the evidence. There is no merit in defendant’s assignment of error.

For these reasons, the conviction and sentence are affirmed.

TATE, J., dissents and assigns reasons.

CALOGERO, J., dissents for the reasons he expressed in dissent and the reasons expressed by Justices Tate and Barham in State v. Jackson, La., 307 So.2d 604 (1975).

TATE, Justice.

I respectfully dissent.

A witness may be examined or cross-examined as to his prior convictions only for the limited purpose of impeaching his credibility. To permit an accused, who admits the conviction, to be cross-examined as to the details of the crimes for which convicted — has no bearing on his present credibility, is grossly prejudicial to the fairness of the trial, and is not authorized by La.R.S. 15:495.

Whatever the justification under the facts of that case for the relaxation of the above principle in State v. Jackson, 307 So.2d 604 (La.1975), the present is an illustration that the decision may have been regarded as an invitation to violate basic concepts of our criminal law — that an ac7 cused should be convicted only if guilty of his present criminal activity, not because he is a bad man or has done unrelated misdeeds in the past other than that for which now on trial. See strong criticism of Jackson decision at 36 La.L.Rev. 662-64 (1976).

Further, we should encourage those accused of crime to take the stand to present their own defense. Jackson and the decision today make prejudicially impossible the testifying in his own defense by one previously convicted of a crime. For we thus permit him to be questioned not only as to the fact of the prior conviction (allegedly only for the purpose of impeaching his credibility), but also as to its gory details (which cannot possibly be relevant to credibility in the usual instance).

The fact that this court has only recently reached its mistaken decision in Jackson, which last year overruled earlier jurisprudence, should not deter us from correcting the mistake at this early opportunity rather than later.

I respectfully dissent.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Charles E. JACKSON.
    No. 57627.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    L. Tod Gremillion, Gremillion & Williams, Baton Rouge, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Douglas P. Moreau, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Charles E. Jackson, with simple burglary in violation of LSA-R.S. 14:62. The jury returned a verdict of guilty of attempted simple burglary and, after a habitual offender hearing, the judge sentenced the defendant to six years’ imprisonment.

In brief, the defendant waives two of his three assignments of errors, which we, therefore, will not consider. See State v. Richmond, La., 284 So.2d 317 (1973); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972). He relies solely upon Assignment of Error No. 2. We find no merit in his arguments, and, accordingly, affirm his conviction and sentence.

Defendant assigns as error the trial court’s ruling allowing the district attorney to question the defendant concerning the details of his prior convictions after the defendant had admitted the convictions; he contends that such questions violate the provisions of LSA-R.S. 15:495.

LSA-R.S. 15:495 provides:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

In State v. Jackson, La., 307 So.2d 604 (1975), this Court held that the State, in impeaching a defense witness, may not only establish prior convictions of the witness, but also may cross-examine the witness about the details of the prior convictions in order to show the “true nature” of the offenses. In State v. Elam, La., 312 So.2d 318 (1975), we extended the Jackson holding to apply to defendants testifying in their own behalf. The defendant urges us to reappraise and overrule those decisions. We find his arguments unpersuasive. In the Jackson case, we examined the rationale of the prior jurisprudence to the contrary, and overruled it after deliberation. We find nothing in LSA-R.S. 15:495 that requires a different result. Accordingly, we adhere to the jurisprudence.

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

DENNIS, J., concurs. See the sentiments expressed in State v. Williams, La., 339 So.2d 728 decided this day.

TATE, J., dissents for the reasons set forth in State v. Williams, La., 339 So.2d 728, this date rendered, and because the details of the other crimes for which convicted, irrelevant to credibility (the purpose for which offered), were grossly prejudicial to the accused’s rights of fair trial.

CALOGERO, J., dissents for the reasons he expressed in dissent in State v. Jackson, La., 307 So.2d 604 (1975) and for the reasons expressed by Justices TATE and BARKAM in that ease.


author: DIXON, Justice.

text:
    Tommie Joe SEATON v. Conrad E. KELLY et al.
    No. 57773.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      DeWitt T. Methvin, Jr., Gist, Methvin & Trimble, Alexandria, for defendant-applicants.
    Cora R. Schley, James S. Gravel, Alexandria, for plaintiff-respondent.
   DIXON, Justice.

On August 18,1973 plaintiff, Seaton, was a guest passenger in a Ford Courier pickup truck owned and operated by Conrad E. Kelly when it collided with a left turning vehicle owned and occupied by Lod Hayes, Sr. and driven by Lod Hayes, Jr. The trial court concluded that the sole cause of the accident was the negligence of Lod Hayes, Jr., an uninsured motorist. The trial court found that the plaintiff sustained damages in the amount of $37,283.65 consisting of $35,000 in general damages and loss of wages and $2,283.65 in medical expenses.

At the time of the accident State Farm Mutual Automobile Insurance Company had in force an automobile liability insurance policy issued to Conrad E. Kelly which described the Ford Courier truck involved in the accident. This policy provided uninsured motorist coverage of $5,000 per person ($10,000 per occurrence) which applied to any occupant of the insured vehicle. Pursuant to this coverage State Farm admitted liability for $5,000 under the uninsured motorist provisions and $2,283.65 under the medical expense coverage. In addition, Government Employees Insurance Company had issued plaintiff, Seaton, policies on two automobiles owned by him with uninsured motorist coverage of $5,000 per person on each. Pursuant to this coverage Government Employees was cast for the $5,000 per person limit under both policies and did not appeal.

State Farm also has a separate policy issued to Conrad E. Kelly on a 1968 Volkswagen automobile which provides uninsured motorist coverage of $5,000 per person. The trial court awarded plaintiff the $5,000 coverage on this policy as well. On appeal the Third Circuit Court of Appeal affirmed the award of this coverage. 327 So.2d 512 (1976). We granted writs to review the correctness of this decision.

State Farm contends that the plaintiff passenger can not recover under the uninsured motorist coverage applicable to the Volkswagen automobile because as to the policy covering the Volkswagen, plaintiff is not an “insured.” The Volkswagen policy provides in pertinent part:

“PART IV — PROTECTION AGAINST UNINSURED MOTORISTS
‘insured’ means:
(a) the named insured and any relative;
(b) any other person while occupying an insured automobile;
‘insured automobile’ means:
(a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded

The Third Circuit did not treat the definition of “insured automobile” and accordingly held that since the Volkswagen was “an insured automobile,” plaintiff was an “insured.” (It is conceded that Seaton was not a “relative” within the terms of the policy). In addition, the court was of the opinion that State Farm’s contention was contrary to the jurisprudence dealing with “stacking.” See e. g. Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Barbin v. United States Fidelity and Guaranty Co., 315 So.2d 754 (La.1975); Wilkinson v. Fireman’s Fund Insurance Co., 298 So.2d 915 (La.App.3d Cir. 1974).

The issue here is not whether plaintiff can “stack” the uninsured motorist coverages on the two policies issued to Kelly. The question of “stacking” only arises once it is determined that the person seeking to cumulate benefits on two or more uninsured motorist coverages is an insured under the terms of those policies. The mandatory uninsured motorist coverage of R.S. 22:1406(D)(l)(a) provides in part:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; . . . ” (Emphasis added).

Graham and Deane, supra, stand for the proposition that the uninsured motorist statute embodies public policy and, thus, any clause in derogation of the mandatory requirements set forth in the statute is invalid insofar as it conflicts therewith. However, R.S. 22:1406 requires that insurance policies provide uninsured motorist coverage only for persons insured under the policy. The clear intent of Graham and Deane is that if a plaintiff is an insured under two or more policies or one policy covering two or more automobiles, pays premiums or has premiums paid for his benefit for two or more different uninsured motorist coverages, he can cumulate the coverages.

The plaintiff respondent’s and the Court of Appeal’s reliance upon Barbin v. United States Fidelity and Guaranty Co., supra, and Wilkinson v. Fireman’s Fund Insurance Co., supra, is misplaced. In Wilkinson the plaintiff was a guest passenger in a non-owned automobile and was injured by the negligence of an uninsured motorist. The court allowed the plaintiff to “stack” the uninsured motorist coverages in an insurance policy issued to plaintiff’s father, and applicable to plaintiff, in which three automobiles were described. In addition, the plaintiff was, as an occupant, an insured under a single “Family” policy issued to the owner of the car in which plaintiff was a passenger. This policy also described two other automobiles. Since by the terms of this policy the plaintiff occupant was an insured under all three uninsured motorist coverages, the court properly held that the plaintiff could “stack” these coverages as well. In dicta the court noted that the same result would obtain even if there were six separate policies individually covering the six automobiles. This remark assumed that the plaintiff occupant would be an insured under those six policies.

In Barbin the defendant insurer had issued the plaintiff a family automobile liability policy which insured his two vehicles, a Ford and a Chevrolet. For each of the vehicles described the insurer had charged a premium for uninsured motorist coverage. While using the Ford, plaintiff, as driver, his wife, and two other couples, as passengers, were injured through the negligence of an uninsured motorist. Each of the three couples sued for damages resulting therefrom. Since the total damages sustained by the three couples exceeded $20,-000, the court cumulated the $10,000 per occurrence provisions in the two coverages. The insurer argued that the four passengers were not “insureds” within the uninsured motorist coverage for which a premium was charged in connection with the Chevrolet, because at the time of the accident they were occupying the Ford. The court stated:

“Under the express terms of the uninsured-motorist coverage (Part IV of the policy), the named insured and his wife (a ‘relative . . . resident of the same household’) are specifically included within the definition of an ‘insured’ for purposes of the coverage. Such definition also expressly includes ‘any other person while occupying an insured automobile.’ An ‘insured automobile’ is defined, for purposes of the coverage, as ‘an automobile described in the policy for which a specific premium charge indicates that coverage is afforded.’
Thus, each uninsured-motorist coverage (each issued for a separate premium) included not only tort-caused damages to the named insured (and relatives living in his household) resulting from operation of an uninsured motor vehicle, whether or not the named insured or his relative was injured while using the Ford and Chevrolet described in the policy. Each such coverage also included any passenger injured by an uninsured motorist while the passenger was occupying either the Ford or the Chevrolet described in the policy: Both vehicles were defined as ‘insured vehicles’ for purposes of the coverage, since each vehicle was described in the policy and since, for each vehicle, a specific premium charge indicated that uninsured-motorist coverage was afforded. . ” (Emphasis added).
315 So.2d 754, at 758.

Thus, these cases only hold that an occupant insured under two or more uninsured motorist coverages may cumulate the benefits when the occupant insured’s damages exceed the mandatory minimum coverage. Since by the clear terms of the policy in this case (see above), the plaintiff respondent was not occupying the automobile “described in the policy for which a specific premium charge indicates that coverage is afforded . . . ” (the Volkswagen), he was not occupying the “insured automobile.” As such he was not an “insured” under the Volkswagen policy and is, therefore, not entitled to the benefits contained therein.

Therefore, the judgments of the Court of Appeal and the district court are amended, reducing the amount awarded plaintiff against State Farm Mutual Automobile Insurance Company by the sum of $5,000, at plaintiff’s cost.


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Xavier MILES.
    No. 57907.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      Orleans Indigent Defender Program, Robert J. Zibilich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Xavier Miles with aggravated rape in violation of LSA-R.S. 14:42. After a trial by jury, the defendant was found guilty as charged. The trial judge imposed the mandatory death sentence. He appeals his conviction and sentence, relying upon six assignments of error.

ASSIGNMENT OF ERROR NO. 13

In Assignment of Error No. 13 defendant complains of the trial court’s refusal to grant him a continuance when one of his witnesses could not be located.

At the outset of the defendant’s trial, prior to the State’s commencement of its opening argument, it was noted that defense witness, Mildred Smith, was not present. Defense counsel stated that without the witness, the defense was not ready for trial and asked “the court to reserve our rights.” Responding to the defense, the court issued an instanter subpoena and ordered that the neighborhood be canvassed. In response to the court’s inquiry about the return, the deputy sheriff noted the return showed the address was an empty house. Defense counsel countered that the address was “good.” The court ordered the case to proceed, over a defense objection. The State then made its opening statement, and the court adjourned.

The next day the defense moved for reis-suance of the instanter subpoena, again informing the court that the address given was correct. The court ordered the reis-suance; without further objection, trial testimony commenced.

In brief, defendant argues that this assignment of error deals with the denial of a defense motion for a continuance to procure the presence of Mildred Smith and urges that the trial judge abused his discretion in failing to grant the motion. Citing State v. Thornhill, 186 La. 447, 172 So. 522 (1937), defendant argues that he was entitled to the continuance because he showed the witness could be procured readily. He argues that the refusal to grant the continuance resulted in a denial of the constitutional right to compulsory process.

Louisiana Code of Criminal Procedure Articles 707 and 709 provide, respectively:

“An application for a continuance shall be [made] by written motion alleging specifically the grounds upon which it is based, and when made by a defendant, must be verified by his or his counsel’s affidavit.”
“A motion for a continuance based upon the absence of a witness must state:
“(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
“(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
“(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

Defense counsel’s request that the court “reserve . . . [defendant’s] rights” does not qualify as a motion for continuance. Moreover, if construed as an oral motion for a continuance, it does not satisfy the requirements of the above articles.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 15

In Assignment of Error No. 15, defendant complains that the trial court erroneously granted the State’s challenge for cause of prospective juror Robert Pullet based on Pullet’s opposition to capital punishment. He relies upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

When asked by the State if he “could . consider” the verdict of guilty as charged (which would automatically result in the imposition of the death sentence), Pullet answered, “Yes, I could consider it but I don’t believe in capital punishment.”

The State correctly argues that this “ Witherspoon -type” issue is no longer valid in light of the recent United States Supreme Court decisions, Roberts v. Louisiana, U.S. -, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); and Selman v. Louisiana, - U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), holding the Louisiana death penalty for rape unconstitutional. We have consistently held that a defendant insulated from the death penalty has no valid Witherspoon complaint. See, e.g., State v. Rester, La., 309 So.2d 321 (1975); State v. Adams, La., 302 So.2d 599 (1974); State v. Brown, La., 302 So.2d 290 (1974).

Assignment of Error No. 15 is without merit.

ASSIGNMENT OF ERROR NO. 16

In Assignment of Error No. 16, the defendant complains of the trial court’s denial of his motion for a mistrial. Defense counsel’s motion is based on the State’s reference in its opening statement to what defendant told the victim’s boyfriend, that is, “Wait, wait. I had to do it. I had to do it. Let me explain. You’ll understand what she was going [sic, doing] to my family. Wait.”

The testimony at trial discloses that the aggravated rape occurred during the daylight hours when the defendant, the victim’s first cousin, sought entrance to her apartment ostensibly to use the bathroom facilities. After he entered the apartment, he overcame the victim, removed handcuffs from a paper bag he was carrying and secured her wrists, taped her mouth with adhesive tape, which was also in the bag which he brought, threatened her with a kitchen knife and raped her. During the commission of the offense, the victim’s boyfriend attempted to admit himself to the apartment by using a key which the victim had given him. The defendant had engaged the safety chain, however, and he could not gain entry. Realizing that the victim’s boyfriend was attempting to enter the apartment, defendant released her, instructing her to “get rid” of her friend. The victim seized the opportunity to escape, telling her boyfriend of the offense as soon as she approached him and admitted him to the apartment. The two men scuffled and the victim ran to a neighbor’s house to call the police. Before the police arrived on the scene, the defendant told the victim’s boyfriend, “Wait, wait. I had to do it. I had to do it. Let me explain. You’ll understand what she was going [sic, doing] to my family. Wait.”

Defense counsel cites the prohibition of Louisiana Code of Criminal Procedure Article 767, which provides:

“The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.”

The State argues in brief that the statements of the defendant to the victim’s boyfriend were res gestae and, hence, not subject to the rules governing confessions and inculpatory statements.

In State v. Fink, 255 La. 385, 231 So.2d 360 (1970), where defendant moved for a mistrial because in the opening statement the district attorney referred to a conversation in which arrangements to purchase contraband were made without having given prior written notice as required by Louisiana Code of Criminal Procedure Article 768, the Court stated:

“In the conversation objected to, the officers made arrangements to purchase marijuana from the defendant. The out-of-court utterances were incident to the criminal conduct and formed part of the res gestae. As such, the conversation was admissible in evidence. LSA-R.S. 15:448; State v. Fernandez, 157 La. 149, 102 So. 186; State v. Terry, 128 La. 680, 55 So. 15; State v. Gessner, 44 La.Ann. 93, 10 So. 404.”
“As used in Article 768, the term incul-patory statement refers to the out-of-court admission of incriminating facts made by a defendant after a crime has been committed. It relates to past events. See State v. Clark, 102 Mont. 432, 58 P.2d 276; 23 C.J.S. Criminal Law § 816, p. 151. Thus the article has no application to the conversation resulting in the sale of marijuana in the present case.”

Later, this Court applied Fink to a factual situation in which the district attorney in his opening statement referred to a defendant’s statement “Give me the knife,” which statement defense counsel argued was a confession. Although the State had not given written notice of intent to use the confession prior to trial, we admitted the statement as part of the res gestae. State v. Crockett, 262 La. 197, 263 So.2d 6 (1972).

Similarly, Xavier Miles’s statement is res gestae. Defendant made this statement at the scene of the crime a minute or two after the rape to the victim’s boyfriend who discovered the defendant naked and the victim partially unclothed and hysterical. LSA-R.S. 15:447, 448; State v. Batiste, La., 318 So.2d 27 (1975); State v. Reese, 250 La. 151, 194 So.2d 729 (1967).

Assignment of Error No. 16 is without merit.

ASSIGNMENT OF ERROR NO. 17

The defendant asserts that the trial judge committed reversible error by overruling his hearsay objection to the following statements:

EXAMINATION BY MR. McKAY: [District Attorney]
“Q. While you were in the room, Mr. Ross, did you notice — did you have a chance to notice anything on the floor or anything out of the ordinary in the room when you went in where the defendant, Xavier Miles, was standing with no clothes on?
“A. Well, I noticed the pants on the floor. They had a knife on the floor also. She had told me about the handcuffs and during the time we was waiting for the officers .
BY MR. ZIBILICH:
“Object to what she told him, if your honor pleases.
BY THE COURT:
“When did she tell you whatever this was?
“A. When she came back from calling the officers, calling the police. She was explaining things to me then.
BY THE COURT:
“Objection overruled.
MR. ZIBILICH:
“Note an assignment of error.”

Defense counsel correctly contends that this testimony is hearsay and should have been excluded. LSA-R.S. 15:434. However, we do not believe that the defendant was prejudiced by its admission for this testimony tended to corroborate the victim’s testimony about the handcuffs. LSA-C.Cr.P. art. 921.

In State v. Smith, La., 285 So.2d 240 (1973), we stated:

“With respect to Bill No. 8 we agree that the victim’s act in picking our defendant’s photograph was essentially assertive in nature, and thus the officer’s testimony to this effect hearsay. However, we find this cumulative testimony not substantially prejudiced in view of the fact that the victim had already testified to the very occurrence, namely that he had picked defendant’s photograph out of several shown him by Officer Furst.”

Assignment of Error No. 17 is without merit.

ASSIGNMENT OF ERROR NOS. 19 and 20

In these two assignments of error defendant complains that the trial court erroneously allowed the introduction of two pieces of tangible evidence, a blouse worn by the victim at the time of the rape and a medical lab technician’s report relative to the result of the tests performed by the examining physician. The defendant argues that the State failed to lay an adequate foundation for the introduction of the evidence.

The defendant argues that the foundation for the introduction of the blouse is inadequate because witness Ross, the victim’s boyfriend, when viewing the blouse at trial, stated that he did not think that the victim was wearing that blouse when she opened the door for him. However, the victim identified the blouse as her own. Therefore, there was adequate connexity to warrant the introduction of the blouse.

In Assignment of Error No. 20, the defendant complains that because the doctor took the swab and smear from which the medical technician’s tests and report were based, there was insufficient connexity to allow the introduction of the evidence. He points out that the technician was not present when the doctor took the swab and smear from the victim.

The State correctly argues that it is only necessary that it is more probable than not that the evidence is connected with the case and that the lack of positive identification goes to the weight to be given the evidence by the jury. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

It is within the discretion of the trial judge to determine whether there is sufficient connexity to introduce evidence. In the absence of an abuse of discretion, his determination will not be disturbed.

Assignment of Error Nos. 19 and 20 are without merit.

As we have heretofore indicated, the United States Supreme Court invalidated the Louisiana death penalty in Roberts v. Louisiana, supra, and Selman v. Louisiana, supra. The death penalty, therefore, can no longer be imposed. This Court has considered the matter and has concluded that the only sentence that can be imposed, in light of the invalidity of the death sentence, is the maximum sentence for simple rape, that is, confinement for twenty years at hard labor. See State v. Lee, La., 340 So.2d 180 (1976); State v. Craig, La., 340 So.2d 191 (1976).

For the reasons assigned, the conviction is affirmed, but his sentence is set aside and his case is remanded to the district court for resentencing consistent with the views herein expressed to imprisonment at hard labor for a term of twenty years.

TATE, J., assigns concurring reasons.

DIXON, J., dissents.

CALOGERO, J., dissents, believing there is merit in assignment of error No. 16.

DENNIS, J., concurs.

TATE, Justice

(concurring).

With regard to the majority’s disposition of Assignment of Error No. 15, I concur in the result only.

The issue there posed is: Did the trial court erroneously excuse, upon the state’s challenge for cause, a juror with merely scruples against the infliction of capital punishment, who did not make it clear that he would automatically vote against the imposition of capital punishment. The defendant correctly argues that the prosecutor is not entitled to a challenge for cause on such ground. See La.C.Cr.P. art. 798 (as amended in 1968).

The majority does not review the merits of this objection, pointing out that no death penalty is actually imposed here.

We are in error, if we hold that we will not review the erroneous exclusion, upon the state’s challenge for cause, of a juror in a death case because no death penalty is actually imposed. If, upon the state’s challenge for cause, the trial court excludes from a capital case all prospective jurors with merely scruples against the death penalty (but who might nevertheless vote to impose it should the evidence so warrant), the state is permitted to exclude prospective jurors for “cause” in violation of our state law. La.C.Cr.P. art. 798(2) (1968). To do so, also allows the prosecution more peremptory challenges than it is authorized by law. See La.C.Cr.P. art. 800.

The “ Witherspoon -type” issue jurisprudence relied upon by the majority arose under different circumstances: The exclusion of jurors with conscientious scruples was there allowed by state law, but it nevertheless violated federal constitutional protections. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Therefore, Witherspoon held, the federal constitutional invalidity of the jury or jury-selection invalidated only the death penalty, not the conviction itself.

In the present case, however, if the state’s challenge for cause was erroneously sustained, the prosecution in violation of state law was permitted arbitrarily to excuse a juror from the jury, by way of an additional peremptory challenge (i.e., for non-recognized “cause”). Our state law expressly invalidates, as cause for excusing a juror, prosecution fears that he might have general scruples against imposition of the death penalty. La.C.Cr.P. art. 798(2) (1968). Our state law forbids the prosecution from so excluding jurors with merely scruples against the death penalty and thus attempting to assure a “hanging” jury. La.C. Cr.P. arts. 798(2) (1968) and 800. See State v. Alexander, La., 328 So.2d 144, 148 (1976) (concurring opinion).

Nevertheless, I am not at this time prepared to dissent, because I am not prepared to find erroneous, upon the showing made, the trial court’s upholding of the state’s challenge for cause. The issue is close, however.

To repeat once again, simply because no death penalty is actually imposed, this court simply cannot ignore our own state procedural statutes in order to avoid review in capital cases of the possible erroneous exclusion by the state of prospective jurors in violation of La.C.Cr.P. art. 798(2). (Such potential prejudice is all the more apparent in the present case. The trial jury actually imposed the death penalty. If culled down to those jurors strongly favoring capital punishment, and excluded from it that cross-section of the population with scruples against its imposition, the defendant would have been deprived of a jury drawn from the entire community.)

Sensitive prosecutors and trial courts should not rely upon generalized statements that this court will never review the erroneous exclusion of jurors for “cause” in violation of La.C.Cr.P. art. 798(2). In context, these statements occur where isolated borderline violations, if any, have occurred. The majority opinions in these instances have not really addressed the issue raised by this concurring opinion. Squarely faced with it, I must believe that this court will not permit convictions to stand where jurors have been improperly excused in violation of La.C.Cr.P. art. 798(2).

      . Defendant neither briefs nor argues Assignments of Error Nos. I, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 18, and 21. These assignments of error therefore, are considered abandoned. State v. Richmond, La., 284 So.2d 317 (1973); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . The author of this opinion dissented in the cases cited, but is obliged to incorporate the majority view in this opinion for the Court.


author: SANDERS, Chief Justice. TATE, J., CALOGERO, Justice

text:
    STATE of Louisiana v. Leslie JAMES.
    No. 58178.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lawrence J. Centola, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

An Orleans Parish Grand Jury indicted the defendant, Leslie James, with first degree murder, a violation of LSA-R.S. 14:30(4). The jury convicted him of second degree murder and the judge sentenced him to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

The defendant appeals, relying on sixteen assignments of error. Three assignments of error perfected in the trial court are not briefed or argued, and, therefore, are considered abandoned. State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

ASSIGNMENTS OF ERROR NOS. 2 AND 3

In a Supplemental Motion to Quash, defense counsel alleged that the responsive verdicts of second degree murder and manslaughter are unconstitutional as applied to a violation of LSA-R.S. 14:30(4) in that they are not lesser and included grades of the offense of killing more than one person. -See LSA-C.Cr.P. Art. 814, subd. A(l). The court denied his motion.

His argument is predicated on the erroneous premise that the defendant was indicted for two homicides.

The indictment reads:

"... That one LESLIE JAMES . committed first degree murder of one, HENRY MARSHALL, and one MICHELLE LACOSTE ...”

In brief the State states that an indictment for a murder based on LSA-R.S. 14:30(4) has to designate two victims. We disagree. A short-form first degree murder indictment only requires the name of one victim, the victim with whose murder the defendant is charged. LSA-C.Cr.P. Art. 465, subd. A(31). This is so because LSA-R.S. 14:30(4) defines first degree murder as the killing of a human being. The confusion stems from the requirement that the defendant have the specific intent to kill or to inflict great bodily arm on more than one person to be convicted under LSA-R.S. M^O^). However, the short form indictment need not reflect the name of the second person. That there was a second intended victim must, of course, be proved at the trial to warrant a conviction.

This indictment is not invalid merely because a second victim was named. Our jurisprudence favors the validity of an indictment when the defendant has adequate notice of the crime charged. State v. James, La., 305 So.2d 514 (1974); State v. Scott, La., 278 So.2d 121 (1973). This indictment informed the defendant of the nature and cause of the accusation against him. Moreover, the addition of the other victim provided the defendant with additional information concerning the crime charged.

The constitutional attack on the responsive verdicts has no merit. The crimes of second degree murder and manslaughter are lesser and included grades of first degree murder.

Defense counsel also filed a Motion and Order to Elect. Its purpose was to make the State elect upon which of the two victims named it would seek a second degree or manslaughter verdict. The defendant is again proceeding on the assumption that the State was trying the defendant for two murders. Since the State was attempting to seek only a first degree murder conviction, the court properly denied the motion.

Although we agree with the defense contention that the language of the indictment failed to specify which of the two homicides was basic to the charge, we do not believe that the defendant was so prejudiced that his conviction should be overturned. See C.Cr.P. Art. 921. It was not crucial for his defense to know which of the homicides was basic, since the killings occurred within minutes of each other and both were relevant to the first degree murder charge. There is no material way in which the defense would have differed had counsel known the identity of the principal victim.

The defense raises the issue of double jeopardy. This issue is premature. The State has not subsequently charged the defendant with a second homicide arising from the criminal episode.

We conclude the assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 4, 5, 6 AND 9

The trial judge upheld the State’s challenges for cause as to three prospective jurors. The defendant submits that this was reversible error because these jurors were not sufficiently opposed to capital punishment. See, LSA-C.Cr.P. Art. 798(2). He relies on Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which held:

“ . . . [T]hat a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

The trial court did not sentence the defendant to death, therefore, he does not have a valid complaint of a Witherspoon violation. State v. Rester, La., 309 So.2d 321 (1975); State v. Adams, La., 302 So.2d 599 (1974); State v. Fallon, La., 290 So.2d 273 (1974).

Defense’s fourth complaint arose when the court upheld the State’s challenge of a prospective juror, Robert Nuss. The basis for this challenge apparently was the juror’s partiality and his refusal to accept the law as given him. LSA-C.Cr.P. Art. 797. The voir dire examination of this jur- or in pertinent part is as follows:

“BY THE COURT: . . . Now, are there any glaring inconsistencies, any real problems that you feel you should point out to the Court or to counsel, any real divergence?
“BY A JUROR: The fact that two witnesses have been excused, and one possible involved, I don’t think I could weigh their evidence as true. I think they could be looking for a way out.
“BY THE COURT: Do you understand that’s for you to decide? . . . The question should be — is whether you’re going to reject somebody’s testimony just in toto because they have been granted immunity. Do you feel that strongly about it, that you would be unable to consider their testimony at all? Is that what you’re saying? (Jur- or nodded affirmatively.)
“BY THE COURT: . . . [T]hat the judge should instruct the jury that accomplice testimony is of the type that has to be scrutinized very carefully. Now, even if I tell you that at the conclusion of the trial, do you feel that you still couldn’t weigh the evidence in the case?
“BY A JUROR: As of right now, the scale is tilted. I wouldn’t be able to listen to their testimony because of their involvement in the case.” (Tr. pp. 10-12).

In State v. Jones, La., 315 So.2d 650 (1975), we stated:

“The trial judge is vested with a wide discretion in determining the qualifications of jurors to serve at a trial. The trial judge can bring to bear on this determination his estimate of a prospective juror, his observation of demeanor, and his knowledge of local trial conditions. Absent a clear showing of abuse of discretion, the trial judge’s ruling should not be disturbed on appeal, (citations omitted)”

A review of the entire voir dire examination reveals no abuse of discretion.

ASSIGNMENTS OF ERROR NOS. 7, 8, 18, AND 19

Defense counsel propounded the following question to prospective jurors on voir dire:

“If it comes to pass that you were to find that Leslie James was justified in the killing of one, he urges to you self-defense, and you were to find from the evidence that he was justified in killing one, but not the other, then a serious element is missing. He did not intend to kill two people. Since the State has elected to proceed in this matter, then you would have to forgive him for one and find him not guilty, as I appreciate the law. And if every element of the crime is the killing of more than one person. Could you find him not guilty under those circumstances?” (Tr. pp. 8-9; see, Tr. pp. 12-13, 15-16, and 23).

The State objected to this question as being an incorrect statement of the law.

By this question counsel inferred that if the jury found him innocent of first degree murder, they must return a verdict of not guilty. He failed to outline the other two responsive verdicts of guilty of second degree murder or guilty of manslaughter. LSA-C.Cr.P. Art. 814, subd. A(l). The court correctly excluded this question. See LSA-C.Cr.P. Art. 786.

He further argues that the court erred in refusing to give his special requested charges. (Special written charges numbered 17, 18, and 19). Substantially, these charges state that there are only two responsive verdicts to the crime charged, namely, guilty and not guilty.

A court is required to give the special charge requested only if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. LSA-C.Cr.P. Art. 807. Since the requested charges do not contain correct legal principles, they were properly denied. See LSA-C.Cr.P. Art. 814, subd. A(l).

ASSIGNMENT OF ERROR NO. 11

The defendant objected to the trial court’s ruling which allowed the State to exhibit four photographs of the victims to the jury. (S-2, S-3, S-4, S-5). Three of the pictures are black and white photographs of both victims at the scene of the crime and one is a color photograph of Henry Marshall at the morgue.

Defendant made no objection to the introduction of the photographs in evidence. He did object, however, when the State exhibited the photographs to the jury.

The defendant complains that the photographs are gruesome and tended to prejudice his defense.

The general rule is that the trial jury is entitled to view photographic evidence introduced during the trial. In its fact-finding and guilt determination function, it is entitled to the benefit of all the evidence.

Thus, the trial judge did not err in allowing the jury to see the photographs. The defense arguments more properly relate to the admissibility of the photographs. The arguments, of course, are not viable since the photographs were admitted in evidence without objection.

ASSIGNMENTS OF ERROR NOS. 12, 13, 14, 15, 17, 18, AND 19

The defendant assigns as error the court’s sustaining a State objection which precluded his questioning five defense witnesses about the victim’s reputation for violence.

As his own first witness the defendant testified that although he had not been directly threatened by Marshall, he heard rumors that Marshall intended to harm him. In an attempt to settle any differences between them, the defendant and his girl friend, Judy Kahoe, got into a car with the two victims. The defendant testified that, after a short ride, Marshall leaned forward. He then shot him, thinking he was reaching for an automatic pistol, which he believed was kept under the dashboard.

On re-direct, Judy Kahoe'testified that she did not see Marshall move forward.

The State objected to questioning the witnesses about the victim’s character on the basis of LSA-R.S. 15:482, which states:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

In State v. Green, La., 335 So.2d 430 (1976), we defined the term “overt act” as follows:

“ . . . [T]he term ‘overt act,’ as used in connection with prosecutions where the plea of self-defense is involved, means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. See State v. Brown, 172 La. 121, 133 So. 383 (1931).”

And in State v. Lee, La., 331 So.2d 455 (1975), we stated:

“ . . . [W]hen appreciable evidence is in the record relevantly tending to establish the overt act, the trial court cannot exercise its discretion to infringe on the fact-determination function of the jury by disbelieving this defense testimony and thus, deny the accused a defense permitted him by law.”

The self-serving, contradicted testimony of the defendant that Marshall leaned toward a place the defendant believed he kept a gun is not appreciable evidence tending to establish an overt act. The trial judge properly excluded the contested evidence.

Defense further contends that the judge erred in refusing to give special charges submitted. These charges would have instructed the jury that evidence of prior threats and bad character of the victim should be considered as relevant in proving the defendant’s fear of an impending attack by the victim.

The judge charged the jury that they must give fair and impartial consideration to all the facts in the case, and to look to all the circumstances surrounding the defendant to decide if he had a reasonable belief that his life was in danger.

The requested charge was contained in the charge given on self-defense, and therefore, was properly excluded. LSA-C.Cr.P. Art. 807.

The trial judge sentenced the defendant to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. This sentence is illegal. The appropriate sentence for a second degree murder committed on November 17, 1974, is life imprisonment at hard labor without eligibility of parole, probation, or suspension of sentence for a period of twenty years. LSA-R.S. 14:30.1. Thus, the sentence must be vacated and the case remanded for the imposition of the legal sentence.

For the reasons assigned, the conviction is affirmed, and the sentence is vacated. The case is remanded with instructions that the defendant be resentenced to life imprisonment without benefit of parole, probation, or suspension of sentence for twenty years.

TATE, J.,

as to Assignments 4, 5 or 6, I concur for the reasons assigned in my concurring opinion in State v. Miles, La., 339 So.2d 735 (1976).

CALOGERO, J., dissents.

DENNIS, J., concurs, disagreeing with treatment of assignments 2 and 3.

CALOGERO, Justice

(dissenting).

The majority holds, as to assignments of error two and three, that the trial judge did not err when he refused to grant defendant’s motion to quash. I disagree with this finding.

The indictment charged that defendant James “committed first degree murder of one, HENRY MARSHALL, and one, MICHELLE LACOSTE.” This indictment charges defendant with the first degree murder of two people, Marshall and La-coste, and, as such, violated the joinder provisions of the Code of Criminal Procedure which at the time of defendant’s indictment and trial stated that “[n]o indictment shall charge more than one offense . . . .” Art. 493. The state takes the position, however, that the indictment charged not two first degree murders but one first degree murder, a violation of R.S. 14:30(4) which proscribes “the killing of a human being . [w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” But an indictment charging this crime should have asserted that defendant killed only one of the two people (either Marshall or Lacoste), while having the specific intent to kill both Marshall and Lacoste. As it stands, this indictment improperly charges two murders, a clear violation of Code of Criminal Procedure Article 493, and should have been quashed.

Defense counsel attempted to force the state to reveal which person was the victim of the murder charged when he filed a Motion and Order to Elect. Although the victim of a murder must be named in order for the indictment to be held valid, see C.Cr.P. art. 465, the trial judge upheld the state’s refusal to specify which murder he was being tried for, and the majority holds that “[i]t was not crucial for [James’] defense to know which of the homicides was basic, since the killings occurred within minutes of each other and both were relevant to the first degree murder charge.” The majority solution ignores the fact that a prosecution for murder presupposes a charge of murder of one person; it is this fact which allows a defendant to decide how to defend against the charge, which aids the trial judge as he rules on the admissibility of evidence, and which lays the foundation for future determinations of jeopardy. It is imperative in a murder trial for the state to disclose just who the victim of the charged homicide was.

The infirmity of this indictment was highlighted when the jury returned a verdict of “second degree murder.” It is impossible to know from the unexplained ver-diet whether defendant has now been convicted of killing Marshall or of killing La-coste and, thereby, of course, acquitted of the first degree murder of one or the other. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). This situation raises the specter of double jeopardy should the state attempt to further prosecute defendant on the basis of this incident, and it violates, I believe, the notice requirements implicit in defendant’s right to due process of law.

For this reason, I must dissent.

      . “(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person

      . Specifically, the motion asked “the Court to order the State of Louisiana to make an election as to which of the two named victims in the instant Indictment does the State seek a second degree murder verdict or manslaughter verdict.”


author: DENNIS, Justice.

text:
    Mrs. Joseph WILLIAMS v. Norma S. BEL and Rene Brunet, Jr.
    Nos. 57943, 58010.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      Joseph S. Russo, Jefferson, for defendant-applicant in No. 57943 and for defendant-respondent in No. 58010.
    Arthur C. Reuter, Jr., Reuter & Reuter, New Orleans, for plaintiff-applicant in No. 58010 and for plaintiff-respondent in No. 57943.
   DENNIS, Justice.

The issue presented for our review is whether a realtor is entitled to recover a commission and reasonable attorney’s fees under an agreement to sell immovable property despite the fact that the sale was thwarted by the partial destruction of the property in Hurricane Betsy.

On July 21, 1965, Mrs. Joseph H. Bel signed a printed agreement to purchase or sell prepared by her real estate agent, Rene Brunet, Inc., offering and agreeing to sell property at 1538 Schnell Drive, Arabi, Louisiana, for the sum of $16,900, containing, among others, the following terms and conditions:

“This sale is conditioned upon the ability of purchaser to borrow upon this property as security the sum of $13,400.00 by a mortgage loan or loans at a rate of interest not to exceed 6% per annum, interest and principal payable on or before 25 years * * *
U * * *
“Should purchaser, seller or agent be unable to obtain the loan stipulated above within 30 days from acceptance hereof, this contract shall then become null and void and the agent is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan subject to approval of title shall constitute obtaining of loan.
U * * *
“If this offer is accepted, seller agrees to pay the agent’s commission of 6% which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.
“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs incurred by the other party, and/or agent in enforcing their respective rights.”

On the same date Doris Croal Williams, acting as agent for her husband, Joseph J. Williams, Jr., signed the instrument accepting the offer as purchaser and James Schmidt signed the document for the realtor.

On July 23, 1965, Mrs. Williams and Mrs. Bel signed the following agreement:

“We the undersigned have mutually agreed to change the financing in the agreement dated July 21, 1965 and accepted on that same date covering the sale of 1538 Snell Drive, New Orleans, La.
“The financing clause is changed to read ‘purchaser will assume vendors existing YA loan with a balance of approximately $11,302.88 carrying an interest rate of 4V2%.’ Purchaser agrees to raise cash down payment from $3,500.00 to approximately $5,597.12.
“All other terms and conditions of this contract to remain the same and unchanged.”

Mrs. Bel appeared at the notary’s office for purposes of completing the sale on the original date scheduled, but because some necessary papers had not arrived from New York the closing was reset for September 10. On September 9, however, the property was heavily damaged after being inundated by the flood waters resulting from Hurricane Betsy. The record is devoid of evidence as to whether any of the parties went to the notary’s office on September 10. Mrs. Williams testified she inspected the property in November and informed Mrs. Bel at that time she would not purchase it because of the damage it had sustained. There is no evidence Mrs. Bel did anything to prevent the sale.

The history of the litigation was outlined by the court of appeal as follows:

“This litigation was initiated by the prospective buyer, Mrs. Joseph Williams, who [in her capacity as agent for Joseph J. Williams, Jr.] filed suit against the seller, Mrs. Norma S. Bel, for $2,380 for breaching the agreement to sell by failing to restore the property after Hurricane Betsy. Also joined as a defendant was Rene Brunet, Inc., for the return of the $1,690 deposit made by plaintiff when she signed the contract to buy. The realtor filed reconventional and third party demands, claiming a commission of $1,014 together with reasonable attorney fees from the seller under the written contract, or alternatively, from the buyer in the event it was concluded the purchaser had breached the agreement.
“From a judgment (1) ordering the realtor to return to plaintiff her $1,690 deposit with legal interest from date of judgment, and (2) dismissing Brunet’s claim for commission and reasonable attorney fees, the realtor has appealed.” (Footnotes omitted.)

The trial court dismissed the claims between the buyer and seller, but neither appealed.

The court of appeal reversed the decision of the lower court in part, finding that the seller Bel was obligated to pay Brunet’s commission, attorney’s fees and costs under the express terms of the contract; however, through an apparent oversight, the court neglected to award attorney’s fees and costs in its decree. Both Bel and Brunet sought and were granted writs, the one contesting the result and the other seeking additional relief. For the reasons hereinafter assigned we reverse and reinstate the judgment of the trial court.

Bel did nothing which caused the sale to be aborted. However, the court of appeal found that Williams “obtained the necessary financing” and held Bel liable to pay the 6% realtor’s commission which the contract declared to be “earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.”

Under the terms of the agreement, the buyer could only have been held liable for the agent’s commission had she failed to comply with the terms of the offer. Both lower courts properly concluded that she did not breach the contract since she was given by law the option to withdraw when the property was partially destroyed. La. Civil Code article 2455 provides:

“If, at the moment of the sale, the thing sold is totally destroyed, the sale is null; if there is only a part of the thing destroyed, the purchaser has the choice, either to abandon the sale, or to retain the preserved part, by having the price thereof determined by appraisement.”

When Williams exercised her legal option to abandon the sale, she was relieved of any obligation under the agreement to purchase and was entitled to have her deposit returned.

However, Williams’ legitimate withdrawal did not, under the wording of the contract, exonerate Bel from paying the commission. She contracted to compensate the realtor when the agreement was signed and a loan was secured. Furthermore, the contract stated that a commitment by a lender to make a loan subject to approval of title would constitute obtaining of a loan. Since Bel committed herself to allow Williams to finance the sale by assuming the existing VA loan, we conclude that the court of appeal correctly held the two sus-pensive conditions had been fulfilled.

Nevertheless, we do not believe that the parties contemplated the seller would be held liable for the realtor’s commission in an instance in which the sale was thwarted through no fault of her own.

The La.Civil Code, articles 1945, et seq., provides rules to guide us in the interpretation of agreements. Pertinently, it provides that the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences; it is the common intent of the parties — that is, the intention of all— that is sought for [article 1945]; and when there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms [article 1950]; when the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation [article 1956]; but if the doubt or obscurity arise from the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee [article 1958],

In our opinion, to require, under the facts of this case, that the seller pay the realtor’s commission would produce an “absurd consequence” and one which was contrary to the common intent of the parties.

As we construe the contract which was drafted by the realty company to its advantage, it was intended to insure that the parties would not mutually agree to cancel the sale, to the prejudice of the realtor’s commission, and that if either party breached the agreement, he would be responsible for the agent’s commission. Such provisions in sale-purchase agreements are both common and enforceable. See, Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972); Miller v. Riley, 152 So.2d 852 (La. App. 4th Cir. 1963); 12 C.J.S. Brokers §§ 87 and 95.

We have rejected realtors’ claims for commissions on prior occasions when the contractual language upon which their claims were based was found not to reflect the common intent of the parties. In Boisseau v. Vallon & Jordano, Inc., 174 La. 492, 141 So. 38 (1932), the plaintiff offered to purchase property in exchange for two lots owned by him and $12,000, and agreed to pay the agent’s commission if the offer were accepted. The offer to purchase was conditioned upon his securing a $9,500 loan, but the agreement to pay the agent’s fee was not. After the offer had been accepted, the plaintiff’s bona fide efforts to obtain financing proved unsuccessful and the sale was never consummated. The agent demanded compensation under the terms of the contract which stated that the commission was “earned upon the acceptance of this offer.” The court dismissed his claim, finding that the plaintiff did not .intend to remunerate the agent if attempts to secure a loan failed, that the provisions of the contract in favor of the agent’s commission were inequitable, and that to enforce them would lead to an “absurd consequence.” This Court applied the same rationale in a later case where after an agreement to sell property had been signed, the seller’s wife prevented the sale by filing a declaration of family home. Guy L. Deano, Inc. v. Michel, 191 La. 233, 185 So. 9 (1938). The agreement had provided relative to the agent's commission: “I [seller] * * * agree to pay the commission of Guy L. Deano, Inc., the amount of Three Hundred and Forty Dollars ($340.00), which is earned upon acceptance of this offer, irrespective of validity of the title.” The court held that the seller’s failure to complete the sale was not due to any defect in the title, but was due to a condition arising subsequently which made it impossible for him to comply with this agreement. It further concluded that the seller, when he listed his property for sale, did not intend to pay the commission if his wife subsequently, without his knowledge and consent, recorded the declaration of family home, making the contract of sale impossible of fulfillment. The Court found that La.Civil Code article 1945, as interpreted by Boisseau, supra, relieved it of the obligation of enforcing the written contract when to do so would lead to an absurd consequence.

Clearly, none of the parties to the agreement contemplated the partial destruction of the property by a hurricane, and judging from the contract as a whole, the contract was neither drafted nor signed with regard for this remote eventuality. Any doubt as to whether the broad language of the agreement governed the unusual circumstances of this case must be resolved against the realtor who drafted the contract and in so doing, failed to specify its application to this improbable contingency. La.C.C. art. 1958. The manner in which the parties executed the agreement furnishes further insight as to their intent. Brunet, the broker, did not demand his commission on July 23,1965 when the purchaser obtained a promise of a loan. Instead, the record indicates he intended to await the completion of the loan transaction, as well as the sale, before collecting his fee. La.C.C. art. 1956.

For the foregoing reasons, the decision of the court of appeal is reversed and the judgment of the trial court is reinstated.

DIXON, J., dissents.