author: SUGG, Justice, for the Court:

text:
    Charles E. CAMPBELL v. STAPLE COTTON COOPERATIVE ASSOCIATION.
    No. 48697.
    Supreme Court of Mississippi.
    June 1, 1976.
    Rehearing Denied July 13, 1976.

      Pittman & Nobles, Barnett, Montgomery, McClintock & Cunningham, Jackson, Herring, Herring & Christopher, Canton, for appellant.
    Fraiser & Burgoon, Greenwood, Henry, Barbour & DeCell, Yazoo City, for appel-lee.
    Before GILLESPIE, C. J„ and INZER and SUGG, JJ.
   SUGG, Justice, for the Court:

A temporary injunction was issued without notice from the Chancery Court of Madison County which enjoined Charles Campbell from disposing of his 1973 cotton crop. A motion to dissolve was overruled and on final hearing complainant, Staple Cotton Cooperative Association, was awarded specific performance of its contract with Campbell together with liquidated damages and attorneys fees. The questions are: (1) Should the temporary injunction have been dissolved? (2) Was Campbell’s contract unenforceable because the association permitted one of its directors to enter into a contract with the association differing in any way from the business relations accorded regular members of the association in violation of Mississippi Code Annotated section 79-19-21 (1972) ? (3) Did the association release some of its members from their marketing agreement ?

The Staple Cotton Cooperative Association is an agricultural cooperative marketing association which operates under the provisions of Mississippi Code Annotated section 79-19-1 (1972) et seq. and is engaged in the business of marketing cotton grown by its members. Campbell is a cotton farmer in Madison County and was a member of the association in 1973, having executed a “Membership and Marketing Agreement.” Under Section 5A of the membership and marketing agreement, the association agreed to sell Campbell’s cotton by one of the methods set forth in paragraph 6A and 6B, the method to be selected by Campbell. Paragraph 6A covers the pool option under which a member’s cotton is lumped with other cotton of like grade-^nd staple and sold by the association. Section 6B is the factor option which provides a member with two marketing methods. Under one method the association displays a member’s cotton to prospective buyers and reports the price offered by the buyer to the member who accepts or rejects the price offered. Under the other method the member may forward contract his cotton designating the association as the marketing agent. A forward contract is a contract by which a member sells cotton to be produced by him before it is harvested, and in some cases, before it is planted.

In March 1973 Campbell executed a forward contract with the association by which he agreed to sell and deliver to the association all of the cotton produced on and ginned from his land for the crop year 1973 at 31.50 cents per pound for all cotton delivered on or before December 10, 1973 and 26.50 cents per pound for all cotton delivered between December 10, 1973 and January 31, 1974.

Prior to the Fall 1973 harvest, the price of cotton on the open market rose dramatically. During October and November 1973 defendant picked, ginned, and placed most of his cotton in a warehouse but did not deliver any of the negotiable warehouse receipts to the association as required by section 4(a) of the marketing agreement which provides:

All cotton shall be delivered at the earliest reasonable time after picking or ginning, to the order of the Association at the nearest public warehouse, or shipment as directed, to the Association, and by delivery of the endorsed warehouse receipts or bills of lading properly directed.

The association filed its bill on November 28, 1973 and a temporary injunction issued without notice enjoining defendant from selling or disposing of his cotton. Campbell answered the bill, moved to dissolve the injunction, and in his answer admitted that he refused to deliver the negotiable warehouse receipts. He claimed that he should not be required to deliver his cotton because his contract was void by reason of preferential treatment accorded a member of the board of directors of the association.

Mississippi Code Annotated section 79-19-33(2) (1972) provides that the association is entitled to an injunction to prevent the breach of a marketing contract and to a decree for specific performance thereof. It also provides that the association is entitled to a temporary injunction against a member pending the adjudication of the action. Campbell’s motion to dissolve was properly overruled because he had not delivered his cotton under his marketing agreement and forward contract. Even if the injunction improvidently issued in the first instance, the association was entitled to have the injunction continued on the hearing on motion to dissolve. This follows from the rule that, because equity acts in the present tense, an injunction will not be dissolved despite its wrongful issuance when it is apparent that complainant would be entitled to another injunction immediately upon dissolution of the first injunction. Gordon v. Gordon, 196 Miss. 476, 485, 17 So.2d 191 (1944); Belzoni Oil Company v. Yazoo & Mississippi Valley R. R., 94 Miss. 58, 77-78, 47 So. 468 (1908).

Campbell’s affirmative defense was that his contract was void because a floating price forward contract executed by some members amounted to either a contract for profit between a board member and the association contrary to Mississippi Code Annotated section 79-19-21 (1972), or a release of these members from their marketing agreement in violation of the rule laid down in Staple Cotton Cooperative Association v. Borodofsky, 143 Miss. 558, 108 So. 802 (1926).

The evidence disclosed that Sturdivant and Bishop, Inc., and several other growers of Deltapine 16 cotton from a designated area negotiated “floating price” forward contracts with W. B. Dunavant and Co. in November 1972 for their 1973 cotton crop and designated the association as marketing agent. Section 3 of the Sturdi-vant contract is as follows:

3. It is understood and agreed that this is a “floating price’’ type of contract, with prices and terms as follows:
The initial starting base price on this contract as of November 17, 1972, is 27.50$ per pound. This 27.50$ as the starting base is based on December, 1973, New York futures at 31.00$. If and when December, 1973, New York futures trade at 32.00$, then the contract price will be 28.00$; or, in other words, with every 100-point rise above 31.00$, Producer and Seller will receive a 50-point increase in the contract price. The increase in price does not become effective until a 100-point increase in the futures market has been reached above the base of 31.00$. Producer and Seller shall continue to receive a 50-point increase in the contract price with every 100-point increase in the futures market thereafter until the final date of September 1, 1973. At no time after the advance in price has occurred for Producer and Seller’s account will he receive less than the advanced price.
It is agreed that when the mills receive and mike the cotton, on any bales miking 5.0 and higher or any bales that show excessive grass or other foreign matter, the Buyer has the option to claim and receive a 100-point discount. Any cotton miking 3.4 and lower will be priced at 500 points over applicable CCC loan value. Also, any cotton reduced on account of grass, bark, etc., will apply on contract at 500 points over applicable CCC loan value.
Any quality of cotton produced in this crop that is not specifically described above shall apply at the same price as cotton of comparable Government loan value that is so described in the contract.
It is understood and agreed that all cotton produced on the Sturdivant Group acres ginned through December 7, 1973, is sold at prices already stated, with any cotton ginned on December 8, 1973, and later to apply on the contract at 500 points over applicable CCC 1973 Government loan levels.
It is further understood and agreed that Buyer will establish an irrevocable letter of credit, payable to Producer and Seller, guaranteeing payment under the terms of this contract. This letter of credit is to be established not later than April 1, 1973.
Terms: Greenwood Cotton Exchange Rules.
After identifying gin tag lists along with net mill receiving weights have been received, Staple Cotton Cooperative Association as agent is to invoice the cotton on March 4, 1974.

The contract permitted Sturdivant & Bishop, Inc. to share in gains on the futures market and eventually netted it approximately 53 cents per pound for its cotton. The president of Sturdivant & Bishop, Inc. was a member of the board of directors of the association when the contract was executed.

Mississippi Code Annotated section 79-19-21 (1972) provides in part that:

No director, during the term of his office, shall be a party to a contract for profit with the association, differing in any way from the business relations accorded regular members or holders of common stock of the association.

The spirit of this section is aimed at preventing an association director from using his position of authority to secure a more favorable contract with the association than its regular members enjoy. See Oliver v. Halstead, 196 Va. 992, 86 S.E.2d 858 (1955). The evidence in this case clearly establishes that Sturdivant and Bishop contracted directly with Dunavant and Co. and that the association did not participate in negotiating the contract, but acted only as the marketing agent. The association received its usual charge of $1.-60 per bale as marketing agent for each bale of cotton that passed under the contract. There was simply no “contract for profit with the association, differing in any way from the business relations accorded regular members ... of the association” as contemplated by the statute.

Campbell contends that the execution of the floating price contracts by Sturdivant and Bishop, Inc. and other growers released them from their marketing agreement and, therefore, released him from his contract to deliver his cotton to the association. Campbell relies on Boro-dofsky, supra, which held that when a cooperative association releases some members from their marketing agreement to deliver cotton to the association, such release defeats the purpose of the association and thereby releases all other association members from their marketing agreements. In this case, however, there is no evidence that the association released any of its members from their marketing agreement because the proof showed that a floating price contract is a form of a forward contract that may be entered into by a member under the factor option clause of the marketing agreement.

Campbell further contends that the association should have offered him a floating price forward contract; however, the proof is that the association never offered such a contract to any of its members but such contracts were negotiated between the members and buyers. Campbell and all other members had the privilege of entering into a floating price contract or a forward contract with the buyer of their choice, but were required to designate the association as marketing agent under their membership and marketing agreement.

Campbell’s affirmative defense failed and the association was entitled to the relief granted. We therefore affirm.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Leroy HAMILTON.
    No. 57522.
    Supreme Court of Louisiana.
    June 21, 1976.
    Samuel M. Cashio, Cashio & Cashio, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Leroy Hamilton was charged by bill of information with attempted first degree murder, a violation of La.R.S. 14:27. He was convicted by a jury and sentenced to serve fifteen years at hard labor. On appeal he relies upon two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Prior to trial, defendant moved to quash the bill of information on the ground that it was improper in form. After a hearing the motion was denied, and defendant assigns this ruling as error.

The bill of information charges that defendant “ * * * did attempt to commit first degree murder of Officer Larry Michenhime, Baton Rouge City Police Officer who at the time of the offense was engaged in the lawful performance of his duties.” Defendant contends that the indictment is defective in that it does not follow the short form provided in La.C. Cr.P. art. 465 nor allege that defendant acted with specific intent. We find that the State did in fact use the specific indictment form of Article 465, and that this served amply to notify defendant of the charges against him.

Among the abbreviated indictment forms authorized by Article 465 are the following:

“7. Attempt — A.B. attempted to-(commit theft of one rifle — state property subject of the theft; rob C.D.; or murder C.D.; as the case may be). (Emphasis added.)
“31. First Degree Murder — A.B. committed first degree murder of C.D.”

The bill of indictment at issue here effectively combined the elements of these two forms to charge attempted first degree murder. The addition of descriptive facts to the indictment did not affect its compliance with the statutory form. The last paragraph of Article 465 pertinently provides :

“The indictment, in addition to the necessary averments of the appropriate specific form hereinbefore set forth, may also include a statement of additional facts pertaining to the offense charged. If this is done it shall not affect the sufficiency of the specific indictment form authorized by this article.”

An allegation of specific intent is not required in the short form indictment. The basic function of the specific indictment forms is to inform the accused of the crime charged, reserving a recital of the details of the offense for the bill of particulars. La.C.Cr.P. art. 465, Official Revision Comment (a). It is clear from a reading of the bill of information that it adequately informed defendant of the nature and cause of the accusation against him.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant unsuccessfully moved for a mistrial when the State commented in its closing argument on defendant’s failure to call his nephew, who was present at the scene of the crime, as a witness in his behalf. The motion was improperly denied, defendant argues, because the witness was equally available to the State and to the defendant.

The governing principle has been expounded by 2 Wigmore on Evidence, § 288 (3d ed. 1940), as follows:

“It is commonly said that no inference is allowable where the person in question is equally available to both parties; particularly where he is actually in court; though there seems to be no disposition to accept such a limitation absolutely or to enforce it strictly. Yet the more logical view is that the failure to produce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances. To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured.”

Although the witness was equally accessible to both the State and the accused for service of process, the failure of the State to place him on the stand cannot, under the circumstances, prevent it from arguing that the jury should draw an inference that the witness would have failed to aid the accused’s case. The witness was the nephew of the defendant. He was the only one of a number of relatives and friends present at the scene of the crime who was not called to testify in defendant’s behalf. The natural and logical conclusion is that, if his testimony would have supported the defense, he would have been produced as a defense witness. Furthermore, the State’s remarks were proper rebuttal to defense counsel’s closing argument in which he stated that he had called most of those present during the incident as defense witnesses and they had consistently testified in exoneration of the defendant. The strength of the inference, of course, was a matter for the jury to consider, and there was no impropriety in the district attorney’s reference to the defendant’s failure to call the witness. See State v. Johnson, 151 La. 625, 92 So. 139 (1922).

Furthermore, we find no errors which are discoverable by a mere inspection of the pleadings and proceedings. La.C.Cr.P. art. 920.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Eddie Louis BELL.
    No. 57510.
    Supreme Court of Louisiana.
    June 21, 1976.

      R. Judge Eames, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On May 23, 1974, a warrant of arrest of defendant Eddie Louis Bell was issued pursuant to an affidavit executed by a Baton Rouge police detective, who deposed that during his investigation of a burglary report he learned that:

“At about 10:00 A.M. May 16, 1974 Mrs. Lorraine Lanehart returned to her home at 3062 Potomac Street to find a strange car backed up to her house with a young black male standing beside the car. Upon entering the home she noticed that it had been broken into and several hundred dollars in jewelry stolen. Subsequently Mrs. Lanehart positively identified Eddie Bell from a photo lineup as being the man who sped away from her home upon her return.”

On August 25, 1975, more than fifteen months later, defendant was arrested, booked with simple burglary and released on bond. On October 30, 1975, upon the State’s motion, the court ordered defendant to show cause why he should not be ordered to appear and stand in a line-up. Following a hearing on January 5, 1976, the trial court ordered the defendant to participate in a line-up on January 21, 1976, but granted defendant through January 14, 1976 within which to apply for supervisory writs. When defendant applied to this Court we granted writs and stayed further proceedings against him in the district court.

Due to a malfunction of the recording equipment at the show cause hearing, the transcript contains only the trial court’s order, and does not indicate what showing was made by the State in support of its motion. Defendant alleges that at the hearing on the motion, the State offered into evidence the arrest warrant and the photographic line-up from which defendant had been identified without laying a proper foundation therefor, and that the motion was granted solely on the basis of this evidence. Defendant contends that he should have been given an opportunity to cross-examine the complaining witness and the investigating officer, and to challenge the validity of the photographic line-up. He complains that the arrest warrant was stale and that in order to exhibit him in a lineup, the State had the burden of proving probable cause for his arrest. Instead, defendant claims that the State shifted its burden to him by requiring him to show cause why he should not be ordered to stand in a line-up. In sum, it is argued that the court order authorized an unlawful detention in violation of the Fourth Amendment to the United States Constitution.

An unreasonable seizure of a person for investigatory purposes is prohibited by the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968), and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The Davis case, relied upon heavily by defendant, involved the investigation of a rape in which the victim could give no better description of her assailant than that he was a black youth. Petitioner was detained, along with at least twenty-four other black youths, for fingerprinting and interrogation. The Court held that the detention, which was neither authorized by a judicial officer nor based upon probable cause, was constitutionally invalid. However, we find Davis inapposite because it involved an initial arrest which was fatally defective for lack of procedural safeguards which were observed in the instant case. Here the trial judge determined that there was probable cause to believe that defendant had committed the burglary when he signed the arrest warrant. Furthermore, the State sought court authorization for the line-up and did not extra-judicially detain defendant for this purpose.

Contrary to defendant’s alternative contention, an arrest warrant does not become “stale” with the passage of time. La. C.Cr.P. art. 205 provides that “[a] warrant of arrest remains in effect until executed.” This is because grounds for arrest, once established, will continue to exist indefinitely, assuming that no new facts have come to light. See L. Hall, et ah, Modern Criminal Procedure, 257 (3d ed. 1969).

Nor can we agree with defendant’s third argument, viz., that he was entitled to collaterally attack the original finding of probable cause at the hearing on the motion for a line-up; there are other procedures available for, and more properly suited to, the testing of these issues. Defendant has the right to a preliminary examination under Art. I, § 14, La.Const. 1974, the contemplated purpose and scope of which is “judicial intervention to determine whether probable cause exists to hold an individual instead of leaving the decision solely to law enforcement agencies.” Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L.Rev. 1, 49 (1974). Under Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed. 2d 54 (1975), an accused who has been released on bond is no less entitled to a preliminary examination than one who is incarcerated. Additionally, defendant could challenge the validity of the photographic line-up in a motion to supress. La.C.Cr. P. art. 703. Consequently, we find that defendant was not improperly deprived of the opportunity to dispute the finding of probable cause for his arrest and the validity of the photographic line-up in the proceedings below.

Defendant’s most compelling argument is that the State should have the burden of showing the justification for detaining a person free on bail and that the State failed to do so in this case. Defendant asserts that the State is required to make a second showing of probable cause comparable to that required upon original arrest for the brief detention which is desired here. We do not fully agree with defendant. Because of his bail obligation, defendant was not completely at liberty; rather, he was constructively in the custody of the law and subject to the court’s inherent authority to deal with him. Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287 (1873), and United States v. Croft, 450 F.2d 1094 (6th Cir. 1971). Compare American Bar Association Standards for Criminal Justice Relating to Discovery and Procedure Before Trial (1970), Standard 3.1. La.C.Cr.P. art. 330 cites as a condition of the bail undertaking defendant’s responsibility to appear at all stages of the proceedings and to submit himself to the orders of the court. However, it should be noted that an accused who has been released on bail is answerable only to the orders of the court. This interposes between him and potentially arbitrary police action the impartial decision of a judicial officer. We find merit in defendant’s argument to the extent that we hold the function of the court, as a neutral and detached magistrate, is to insure that his freedom, although limited, is nevertheless protected against unreasonable or unjust intrusions by the State. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 LEd.2d 564 (1971).

The record before us does not establish that the trial court performed its function as a mediator at the hearing on the State’s motion. The motion itself did not indicate why the line-up was necessary or even that it was to be conducted in connection with the same offense for which defendant had been arrested; and the truncated transcript with which we have been supplied does not reflect that the court required the State to show that the order was just and reasonable before granting it. We therefore vacate the order of the trial court and remand the case for a hearing consistent with the views expressed herein.

The issue of what protective order, if any, may be required to prevent suggestive identification at any hearing on this motion is not before us.

REMANDED.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. George ALEXANDER and Brenda Wilson.
    No. 57492.
    Supreme Court of Louisiana.
    June 21, 1976.

      Richard E. Moore, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged George Alexander and Brenda Wilson with distribution of heroin in violation of LSA-R.S. 40:966. The defendants waived a jury trial. The judge heard the evidence and found the defendants guilty. He sentenced them to life imprisonment in the custody of the Department of Corrections. They appeal their convictions, relying on seven assignments of error. Assignments of Error Nos. 1, 2, and 7 were neither briefed nor argued and are considered abandoned. State v. Credeur, La., 328 So.2d 59 (1976); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENTS OF ERROR NOS. 3, S, AND 6

These three assignments of error arise from the following facts:

The Orleans Indigent Defender Program originally represented defendants. However, Mr. Bernard J. Usprich of that office moved to withdraw as counsel of record for Alexander because he had previously represented two witnesses in the case. The trial court granted that motion on December 9, 1974. On that same date, Mr. Richard E. Moore was appointed to represent the defendants. On the morning of the trial (January 16, 197S), Mr. Moore asked the court for a continuance in order to study a motion presented by Alexander in proper person. Noting that Mr. Moore had been appointed to represent the defendant since December 9, 1974, and had adequate time of over a month within that period to investigate Alexander’s allegations, the trial court denied the motion for a continuance.

While discussing the continuance, Alexander stated that a friend had hired an attorney to represent him in the case. Alexander then asked for a continuance to allow the retained attorney to represent him. Noting that this retained attorney had never moved to be enrolled as counsel of record and was not present for the trial, the court again denied the motion for a continuance requested by Alexander.

On the morning of the trial, Alexander presented a motion for a bill of particulars which he had prepared in proper person. The trial court’s denial of that motion is the basis of defendants’ assignment of error.

LSA-C.Cr.P. Art. 484 provides in pertinent part:

“A motion for a bill of particulars may be filed of right before trial or within ten days after arraignment, whichever is earlier. After expiration of the ten-day period the court may permit the filing of such a motion until the commencement of trial. When a motion is filed, or on its own motion, the court may require the district attorney to furnish a bill of particulars setting up more specifically the nature and cause of the charge against the defendant.”

The granting or refusing of a bill of particulars addresses itself to the sound discretion of the trial judge, and the ruling of a trial judge denying an accused data sought in a motion for a bill of particulars will not be disturbed in the absence of a clear showing that the judge abused his discretion to the prejudice of the accused. State v. Bailey, 261 La. 831, 261 So.2d 583 (1972); State v. Pratt, 255 La. 919, 233 So.2d 883 (1970); State v. Wright, 254 La. 521, 225 So.2d 201 (1969).

In light of the State’s having made its entire investigative file available for review of defense counsel prior to trial, all useful information was already known to the defense. The filing of the bill of particulars was unnecessary and was properly denied by the trial court.

Assignment of Error No. S is based on the trial court's denial of defendants’ motion for a continuance. As stated earlier, defense counsel had been appointed thirty-eight days prior to trial. Defense counsel stated that he was prepared for trial in that he had investigated the case. The motion for continuance was based upon the motions submitted by Alexander which his court appointed defense counsel had not had an opportunity to investigate.

Defense counsel chose not to file any motions after he had an opportunity to review the State’s entire investigative file. We have concluded that the motions filed by the defendant in proper person lacked merit. We find no abuse of discretion on the part of the trial judge in denying a continuance.

Assignment of Error No. 6 deals with the denial of defendant’s motion for substitution of counsel and for the appointment of separate counsel to represent defendants.

The general import of the colloquy which took place prior to trial was that Alexander was dissatisfied with his court appointed counsel and had the representation of a retained attorney through the aid of a friend. A denial of a motion for a continuance made on the day of trial on grounds that the defendant is dissatisfied with his attorney has been held to be proper. State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

In State v. Austin, supra, we stated:

“Defendant is entitled to counsel. He may hire whom he chooses. Because he is indigent, he is privileged to have the State appoint an attorney without any cost to him. To permit the accused to discharge his court-appointed counsel on the day of trial, without any showing of incompetence and without having a privately retained attorney present to take his place, would be to permit defendant to choose which lawyer the court must appoint to defend him. We are not aware of any basis in law for such a claim upon the State or upon the members of the bar.”

See also State v. Navarre, La., 289 So. 2d 101 (1974), wherein the language quoted above was cited with approval.

Defendants contend that separate attorneys should have been appointed to represent them. At the time of trial, defense counsel did not urge that separate counsel should be appointed for each defendant. The request was made by Alexander. No statement of fact showing that a substantial conflict exists or that the defenses were antagonistic was made. We have held that the mere assertion that separate counsel is needed is insufficient. Specific facts must be presented to the trial judge to show that antagonism or conflict between the defenses does in fact exist. State v. Baker, La., 288 So.2d 52 (1973). Compare State v. Bonner, 252 La. 200, 210 So.2d 319 (1968); State v. Kemp, 251 La. 592, 205 So.2d 411 (1968).

We note that the facts of the case do not indicate that defendants’ defenses were antagonistic. On January 29, 1974, Special Agent Charles Park of the Drug Enforcement Administration in New Orleans was following another agent and two informants for surveillance. One of the informants alighted from the car and got into a car in which the defendants were sitting. Defendant Brenda Wilson drove the car while defendant George Alexander sold nine packets of heroin to the informer in the back seat of the car.

Assignment of Error. No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant Alexander filed a motion to recuse the trial judge. The motion was denied, and the defendant assigns error to the denial. In the assignment of error filed with the trial court, defense counsel stated that the motion was based on bias which precluded the judge from conducting a fair and impartial trial. In brief, however, defense counsel asserts that the motion is based on the trial judge’s having presided over another case involving the defendant.

In State v. Maduell, La., 326 So.2d 820 (1976), considering the showing necessary for the recusal of a trial judge, we stated:

“Undoubtedly Article 671(1) of the 1966 Code [Code of Criminal Procedure] does enlarge the grounds for recusation by adding bias and prejudice to personal interest in the cause. These causes, however, must be such that the judge would be unable to conduct a fair and impartial trial, and the disqualifying bias, interest, or prejudice must be of a substantial nature.
“Although the grounds for recusation are no longer limited to ‘interest’ as it was when the Laborde case [214 La. 644, 38 So.2d 371 (1949)] was decided, the principle expressed there that the recusation must be based upon more than mere general conclusory allegations remains viable and relevant to the issue.”

The fact that the trial court judge presided over another case involving defendant Alexander is insufficient for recusal.

Assignment of Error No. 4 is without merit.

For the reasons assigned, the convictions and sentences are affirmed.

      . The trial court recessed briefly to telephone the attorney allegedly retained by Alexander’s friend to represent him. Although the record does not specifically reflect what transpired during the recess, immediately thereafter the court denied the defendant’s motion for a continuance.

      . The bill of particulars filed by Alexander is not part of the record in this case. It is, therefore, impossible to know what specific information was requested therein.

      .Defendant Alexander presented motions for the consideration of the court. Although the motions were not prepared by his court-appointed attorney, it is not clear if Alexander himself prepared the motions. It appears that at the time he presented the motions, Alexander did so on his own behalf only. However, defense counsel in brief assigns error and treats the denial of defendant Alexander’s motions as prejudicing both Wilson and Alexander. Therefore, this Court will treat the motions as though they were filed on behalf of both defendants.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Rickey B. BIZETTE.
    No. 57360.
    Supreme Court of Louisiana.
    June 21, 1976.

      C. Alvin Tyler. C. Alvin Tyler & Associates, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Rickey B. Bizette was charged by bill of information with the crime of operating a vehicle while intoxicated on April 20, 1975, in violation of La.R.S. 14:98. After trial by a judge, he was found guilty and was sentenced to pay a fine of $200.00 and costs or in default thereof to serve sixty days in the parish jail. We granted the defendant’s application for a writ of review under our supervisory jurisdiction. La. Const, art. 5, § 5(A) (1974); La.Code Crim.P. art. 912.1.

Defendant’s sole assignment of error complains of the trial court’s denial of his motion for a judgment of acquittal. In a trial by the judge alone, the court shall enter a judgment of acquittal if the state presents no evidence that the accused committed the crime or an essential element thereof. La.Code Crim.P. art. 778. as amended, La.Acts 1975, No. 527, § 1; State v. Douglas, 278 So.2d 485 (La.1973). Contending that there is no evidence of his operation of a motor vehicle, an essential element of the crime charged, defendant asks that we reverse the conviction and sentence and either remand the case to the trial court for a judgment of acquittal, or, in the alternative, remand the case for a new trial.

Owing to substantial omissions from the transcript of the trial proceedings, we are unable to determine whether the trial court erred in denying defendant’s motion for a judgment of acquittal.

At the trial of this case, the state presented one witness, Trooper E. W. Sivula, the patrolman who arrested defendant on April 20, 1975 at about four o’clock in the morning for operating a vehicle while intoxicated. The greater part of the trooper’s testimony, however, was not recorded at trial. In a note annexed to the transcript, the court reporter states that not all the testimony could be transcribed because the recording equipment malfunctioned. In oral argument before this court, it was asserted that defendant’s counsel at trial was not aware that the recording equipment was note operating properly.

The portion of the testimony that was recorded begins with the concluding part of Trooper Sivula’s testimony. Dealing largely with the fact that defendant was advised of his Miranda warnings following his arrest, his recorded testimony relates neither the events leading up to defendant’s arrest, the officer’s observation of his intoxicated condition at that time, nor the results of any PEI or other sobriety tests that may have been given. After Trooper Sivula’s testimony comprising the state’s case in chief, the transcript continues with the testimony of the defense witnesses, including the defendant, and the trooper’s very brief rebuttal testimony. At that point, the court reporter notes that the recording equipment again began to malfunction, and that she is consequently unable to report what occurred during the remainder of the trial.

The state argues that, since the crime charged herein is a misdemeanor, defendant waived 'his right to judicial review based upon a complete record of all evidence upon which the judgment is based because he did not move for recordation of the proceedings.

Article 843 of the Code of Criminal Procedure, as amended, La.Acts 1975, No. 118, § 1, provides as follows:

In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

Defendant’s counsel in oral argument stated that it was the practice of the Nineteenth Judicial District Court to record the proceedings in trials for misdemeanor offenses, even in the absence of a motion therefor. Further, as stated above, counsel also was under the impression that the entire proceedings were being recorded and was not aware that, because of the malfunctioning recording equipment, a substantial portion of the trial was not in fact recorded. In our view, under the circumstances here presented, a motion of the defendant for recordation of the trial proceedings, as required by article 843, would 'have been a vain and useless act. Accordingly, we cannot say that defendant intelligently waived his right of judicial review based upon a complete record of all evidence upon which the judgment is based. La.Const. art. 1, § 19 (1974). On the other hand, we find no evidence, nor is it even alleged, that the failure of the recording equipment to function properly throughout the trial was due to bad faith on the part of the state. We therefore reverse the conviction and sentence and remand the case for a new trial in accordance with law.

DECREE

For the reasons assigned, the conviction and sentence are reversed and the case is remanded for a new trial in accordance with law.

SUMMERS, J., dissents.

      . We note that the incomplete record before us contains no admissible evidence that defendant was intoxicated, an essential element of the crime charged. Defendant testified that he had drunk a few beers on the night of his arrest, but maintained that he was sober when operating the motor vehicle. The Alcoholic Influence Report Form, filed into evidence over defendant’s objection, contains Trooper Sivula’s observations of defendant’s condition at the time of his arrest. The form states that defendant was asleep or passed out at the wheel of his car (parked on the shoulder of the highway), that he had a strong odor of alcohol on his breath, and that he failed the field sobriety tests given. The trooper’s observations, however, were inadmissible at trial because they were hearsay. La.R.S. 15 :434.


text:
    Susan JOHNSON, wife of Charles E. Welsh v. Charles E. WELSH.
    No. 57312.
    Supreme Court of Louisiana.
    June 21, 1976.
    T. M. McBride, III, Chalmette, for plaintiff-respondent.
    Garland R. Rolling, Metairie, for defendant-applicant.
   MARCUS, Justice.

In this action for a separation from bed and board, the principal issue before us is whether suit was filed in a court of proper venue.

On September 3, 1974, plaintiff Susan Johnson Welsh filed suit in Plaquemines Parish against her husband Charles E. Welsh, for a separation from bed and board on the ground of cruel treatment. In her petition she alleged that by reason of defendant’s heavy drinking and physical abuse she was forced on August 29, 1974 to leave the matrimonial domicile in Gretna in Jefferson Parish and to return to her parents’ home in Buras, located in Plaque-mines Parish. Service of process was personally made on defendant and he engaged an attorney to defend him in the litigation. However, he failed to answer plaintiff’s petition and, on December 17, 1974, plaintiff obtained a judgment of separation by default. On March 24, 1975, the judgment of default was confirmed.

Thereafter defendant appealed, contending that the trial court lacked venue in the case because plaintiff was not domiciled in Plaquemines Parish. The court of appeal held that plaintiff had established a domicile in Plaquemines Parish and affirmed the judgment of the trial court. 322 So.2d 352 (La.App. 4th Cir. 1975). We granted defendant’s application for certiorari. 325 So.2d 604 (La.1976).

An action for an annulment of marriage, separation from bed and board, or divorce must be brought in the parish where either party is domiciled, or in the parish of the last matrimonial domicile. La.Code Civ.P. art. 3941 (1960). The prescribed venue is jurisdictional; it may not be waived and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity. Id.

With regard to determining domicile, article 39 of the Civil Code declares that the domicile of a married woman is that of her husband. Despite the fact that the unconstitutionality of Civil Code article 39 was not pleaded in the trial court, the court of appeal reasoned that this article, insofar as it would enable a husband, but not a wife, to move at will to a new parish and there sue for a separation or divorce, would violate article 1, section 3 of the Louisiana Constitution of 1974.

It is well settled that all laws are presumed to be constitutional until the contrary is made to appear, and that as a general rule a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded and the grounds particularized. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971) and cases cited therein; City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930). As a corollary of this rule, a litigant who fails to plead the unconstitutionality of a statute in the trial court cannot raise the constitutional issue in the appellate court. E. g., Summerell v. Phillips, supra; Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402 (1970); State ex rel. McAvoy v. Louisiana State Board of Medical Examiners, 238 La. 502, 115 So. 2d 833 (1959); Southern Enterprises v. Foster, 203 La. 133, 13 So.2d 491 (1943).

Since the constitutionality of article 39 of the Civil Code was not attacked by the pleadings in the trial court, the court of appeal erred in passing upon the issue. The question of its constitutionality was not before that court; nor is it before us.

Moreover, the appellate court’s consideration of the constitutional issue was contrary to the settled judicial practice of declining to determine the constitutionality of laws unless such a determination is necessary for disposition of the cause. Lake, Inc. v. Louisiana Power & Light Co., 330 So.2d 914 (La., 1976); In re Interest of Toler, 262 La. 557, 263 So.2d 888 (1972); Tafaro’s Investment Co. v. Division of Housing of Improvement, 261 La. 183, 259 So.2d 57 (1972); Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970). Accord, Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). In our opinion, the same result in this case can be reached on nonconstitutional grounds, making consideration of the constitutionality of article 39 of the Civil Code improper.

Although article 39 of the Civil Code expresses the general rule that a wife’s domicile is that of her husband, in exception to that rule our jurisprudence has long declared that a married woman may acquire a domicile separate from that of her husband if she is abandoned, or if her husband’s misconduct justifies her leaving. Berry v. Berry, 310 So.2d 626 (La.1975); Bush v. Bush, 232 La. 747, 95 So. 2d 298 (1957); Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891). Misconduct on the part of the husband that would justify the wife’s establishing a separate domicile is substantially equivalent to conduct that would constitute grounds for a separation. Berry v. Berry, supra.

Plaintiff and her father testified at the hearing in the trial court in which the judgment of default was confirmed. Plaintiff stated that defendant used to come home almost every night after nine o’clock in an intoxicated condition. On August 29, 1974, he returned home drunk and in an irritated mood. While changing their daughter’s diapers, defendant, according to plaintiff’s testimony at the hearing, without provocation shoved plaintiff against the wall and began to choke her. She struggled to regain her freedom and asked to leave. Defendant told her to “take the kids and get out,” and she telephoned her father for a ride to her parents’ home.

Plaintiff’s father arrived shortly after-wards, finding defendant in a very drunk condition. He witnessed his daughter and grandchildren crying, and also noticed a red streak around his daughter’s neck. Defendant again warned his wife and her father to get out. Plaintiff’s father brought plaintiff and her two children to his home, where they thereafter resided.

After carefully reviewing the transcript of the hearing, we conclude that plaintiff established a prima facie case for a judgment of separation by default on the ground of cruel treatment. La.Code Civ.P. art. 1702 (1960). Since the degree of misconduct that would constitute grounds for a separation is substantially similar to misconduct that would justify the wife’s establishing a separate domicile, plaintiff was legally entitled to acquire a separate domicile in Plaquemines Parish. Berry v. Berry, supra. We further find that plaintiff in fact resided in her parents’ home (where she also lived prior to her marriage) with the intention of making Plaquemines Parish her principal domestic establishment. La.Civil Code art. 41 (1870). Consequently, when she instituted this action plaintiff was domiciled in Plaquemines Parish, and the trial court therein was a court of proper venue.

Defendant also urges an “equitable” argument, unsupported by any authority, that the judgment of separation should be reversed because the failure of his attorney to answer the petition or make any appearance on his behalf prevented him from contesting this matter. The court of appeal correctly held that such failure does not constitute a ground upon which a judgment of default may be set aside. La.Code Civ.P. arts. 1701-02, 2002, 2004 (1960).

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON, CALOGERO and DENNIS, TJ., concur.

      . This provision states:
      § 3. Right to Individual Dignity
      Section 3. No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter ease as punishment for crime. (Emphasis added.)

      . In fact, the constitutional issue was not even briefed or raised by the parties in this case on appeal; plaintiff asserts in oral argument before this court that the court of appeal itself first raised the issue ex proprio motu.


text:
    STATE of Louisiana v. Lawrence J. RUSSELL.
    No. 57536.
    Supreme Court of Louisiana.
    June 21, 1976.

      Kenny M. Charbonnet, Charbonnet & Charbonnet, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Lawrence Russell by bill of information with armed robbery in violation of LSA-R.S. 14:64. He was tried and convicted. The court sentenced him to imprisonment for fifteen years. He appeals his conviction and sentence, relying on seven assignments of error. However, defendant did not brief or argue Assignments of Error Nos. 3,6, and 7. These three assignments of error are, therefore, considered abandoned. State v. Credeur, La., 328 So.2d 59 (1976); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

On April 21, 1975, two men brandishing pistols robbed the Dixie Building Materials. Dewey Keller, an owner who was in the shipping office at the time of the robbery, saw the two men enter, pull pistols, and force the employees and customers to lie on the floor. During the robbery, the two men lowered the handkerchiefs which they held over their faces several times. Keller and John Pitts saw the robbers’ faces clearly.

After the robbery, Keller received an anonymous telephone call asking if he wanted information concerning the identity of the robbers. In another call, the unidentified informer stated where the perpetrators were located. Keller called the police and informed them of his call. The police, however, did not respond to the information.

On May 5, 1975, the same anonymous caller informed Keller that the two men who had robbed him were at a nearby grocery store. Keller relayed this information to the police. Shortly thereafter, Keller and Pitts left Dixie Building Materials in an automobile bound for the store to see whether the police had responded to the call.

As they approached the store, Keller and Pitts saw two plainclothes detectives talking to two men outside of the store. Immediately, both witnesses recognized the two individuals as the robbers. Keller and Pitts returned to Dixie Building Materials and called the police headquarters to inform them that the detectives had the right two men. Police Headquarters radioed the two detectives of the positive identification, and Lawrence Russell and Carl Bin-ion, the two men being questioned, were arrested.

On May 13, 1975, the police held a lineup. Keller and Pitts positively identified Russell and Binion as the men who had robbed them.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns error to the denial of his motion to suppress his identification. He argues that his identification was tainted by the out-of-court viewing.

The State argues that the first viewing of the defendant by the two victims of the robbery was spontaneous and unsolicited.

We have reviewed the testimony and approve the findings of the trial judge as to the totality of the circumstances existing at the time of the in-the-field identification. The resolution of a due process challenge to pretrial identification procedures involves an evaluation of each confrontation in the light of the “totality of the circumstances” surrounding the confrontation. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A denial of due process of law results if the identification procedures are “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication.” Simmons v. United States, supra.

The State was in no way responsible for the witnesses’ viewing of the defendants when they were arrested. Keller and Pitts decided to drive over to the grocery store to see what action if any was being taken by the police. The witnesses called headquarters to identify the men as the culprits.

In addition, even if we were to assume that the pre-trial identification was tainted, the in-court identifications were properly admitted. As we recently stated in State v. Moseley, La., 284 So.2d 749 (1973):

“ . . . [E]ven if the out-of-court identification was tainted, if the in-court identification had a source independent of the out-of-court identification, the in-court identification does not violate defendant’s due process rights. State v. Newman, No. 53,422 on the docket of this Court handed down on September 24, 1973, 283 So.2d 756; State v. Amphy, 259 La. 161, 249 So.2d 560 (1971); State v¡ Richey, 258 La. 1094, 249 So.2d 143 (1971); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
“We stated in State v. Newman, supra, that a determination of whether the witness’ in-court identification was based upon an independent source involves these factors: (1) the prior acquaintance of the witness with the accused; (2) length of time the witness observed the perpetrator before, during and after commission of the offense; (3) the circumstances under which the observation was made. This would include illumination at the scene, the physical capacities of the witness and the emotional state the witness was in at the time of observation.”

According to the testimony, the witnesses had ample opportunity to see the defendant. The robbery took place at approximately noon when ordinary vision was not impaired. The defendant was identified by the two witnesses as one of the two robbers.

Thus, the trial court correctly denied the defendant’s motion to suppress his identification.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant complains that the trial court erred in denying his motion to disclose the identity of the informer who made the anonymous phone calls to Keller.

At the pretrial hearing on the motion to disclose informant, Keller testified that the informer (anonymous caller) telephoned him three times; that on one occasion, the caller explained that he knew who the robbers were because of a conversation he had overheard in a bar or restaurant in the neighborhood; that following the arrest of Russell and Binion, the informer had come to him and collected money; but that he did not know the name or identity of the informer.

Defendant contends that he was denied his right to confront the witnesses against him because Keller could not, or would not, reveal the name of the individual who had given him information leading to his arrest.

A confidential informant’s identity will be revealed only under exceptional circumstances. See State v. Thorson, La., 302 So.2d 578 (1974). The general rule dealing with confidential informants is that the burden is upon the defendant to show exceptional circumstances justifying disclosure. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971); State v. Greenbaum, 257 La. 917, 244 So.2d 832 (1971).

On the question of whether the circumstances warrant disclosure, much discretion is vested in the trial court. State v. Dotson, supra, and citations therein.

It should be noted that an anonymous caller dealing directly with the victim of a crime is not a “confidential informant” to the police. For that reason, the trial court should be even more cautious in ordering disclosure. However, at the hearing, Keller stated that he did not know the identity of the anonymous caller. Hence, there could be no disclosure of identity.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant filed a motion for a new trial alleging that: (1) the verdict is contrary to the law and the evidence; (2) the ends of justice would be served by granting the defendant a new trial; and (3) new evidence has been discovered entitling him to a new trial.

The trial judge denied the motion for a new trial, stating that the verdict was not contrary to the law and the evidence and that the new evidence was merely cumulative. Further, the trial judge ruled that the exercise of due diligence would have easily discovered this corroborating evidence for presentation during trial.

It is well established that the denial of a motion for a new trial on the grounds that the verdict is contrary to the law and the evidence presents nothing for this Court’s appellate review. State v. Celestine, La., 320 So.2d 161 (1975).

Motions for new trial made on the basis of newly discovered evidence should be received with great caution and should not be granted unless such evidence is so material that it might reasonably produce a different result than the verdict reached. State v. Ferguson, La., 307 So.2d 361 (1975).

As the trial court judge states in his per curiam, the newly discovered evidence was merely cumulative, as defendant’s alibi witness at the trial testified that he had seen Russell at the vocational training school on April 21, 1975. Moreover, the exercise of due diligence would have easily discovered this corroborating evidence for presentation during trial.

It is well settled that the granting of a new trial on this ground is largely within the discretion of the trial judge, and that his ruling will not be disturbed on appeal in the absence of manifest error. State v. Ferguson, supra; State v. Cancler, 252 La. 380,211 So.2d 298 (1968).

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, defendant complains of the trial court’s granting of the State’s motion to sever. As this ruling followed the defendant’s motion to sever, the defendant cannot now be heard to complain.

Assignment of Error No. 4 is without merit.

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

DIXON, J., concurs.


author: TATE, Justice.

text:
    Flossie B. TAYLOR and Charles D. Heck, Jr., Plaintiffs-Appellants-Respondents, v. MFA MUTUAL INSURANCE COMPANY, Defendant-Appellee-Relator.
    No. 57332.
    Supreme Court of Louisiana.
    June 21, 1976.

      Lloyd E. Hennigan, Jr., Sanders & Hen-nigan, Winnfield, or plaintiffs-appellants-respondents.
    Ronald E. Corkern, Jr., Watson, Murchison, Crews & Arthur, Natchitoches, for defendant-appellee-relator.
   TATE, Justice.

The primary issue is whether by statute, La.R.S. 22:636.1 (1968; amended, 1972), an insurer which issues a short-term policy of .three months is required to give notice before permitting such short-term coverage to expire by its own terms.

The defendant insurer (MFA Mutual) had issued the plaintiff Taylor an automobile policy for a term of three months. Shortly after the three months had expired, the co-plaintiff Heck was injured while driving the insured automobile. The plaintiffs sue for collision and medical benefits payments undoubtedly due under the policy, if in effect on the date of the accident.

The defendant insurer denies coverage upon the contention that, since the three months had expired, the policy was no longer in effect on the date of the accident.

The trial court agreed with the insurer’s contention. The court of appeal reversed, holding that La.R.S. 22:636.1 required notice to the insured before expiration of such short-term coverage; it awarded judgment to the plaintiffs. 322 So.2d 842 (La. App. 2d Cir. 1975). We granted certiorari, 325 So.2d 604 (La.1976), primarily because, as recognized by the court of appeal, the decision is in conflict with the decision of another circuit on the same issue, Arceneaux v. Broussard, 319 So.2d 846 (La.App. 1st Cir. 1975).

The narrow issue before us concerns the construction of a provision in La.R.S. 22:-636.1. This statutory section, enacted by Act 632 of 1968 and strengthened by Act 452 of 1974, generally requires notice before cancellation, Subsection B, or failure to renew, Subsection E, an automobile liability policy. It limits the grounds for cancellation of such a policy, Subsections B and C, and it provides somewhat strict time limits of advance notice, Subsection D, and notice-content, Subsections G and H, as a prerequisite to cancellation of a policy.

The evident purpose of the legislation, as the court of appeal herein held, was to protect an insured and the public against unnoticed termination of automobile-liability coverage either through cancellation or nonrenewal. As the court held, La.App., 322 So.2d 842: “The meat of the statute is the notice provisions required in cases of cancellation and nonrenewal. The purpose of the notices required by the statute is to make the insured aware that his policy is being terminated and to afford him time to obtain other insurance protection. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973).”

It is in this context that we must construe a proviso of the statute upon which the plaintiffs rely. Found within the definitions section, Subsection A of the statute, the proviso unambiguously states: “ * * * any policy with a policy period or term of less than six months shall for the purpose of this chapter [i. e., the Insurance Code, which is chapter 1 of Title 22] be considered as if written for a policy period or term of six months * *

The present policy was issued for a term of three months, December 15, 1973 to March 15, 1974. Just before March 15, the named insured (Mrs. Taylor) became sick and went to the hospital, before she had resolved with her agent a dispute as to the amount of premium due for extending the coverage another three months.

The accident occurred on April 6, some three weeks after expiration of the three-month period. According to Mrs. Taylor, she immediately reported it to her insurance agent, assuming there was coverage because, on an earlier occasion, the policy had been reinstated immediately upon her payment of the premium several days after expiration of a three-month term.

If the three-month policy issued to Mrs. Taylor expired by its own terms, without further notice, then coverage clearly ended on March 15, prior to the accident of April 6.

In our opinion, however, the court of appeal correctly held that, by the quoted unambiguous statutory proviso, the present three-month policy “shall be considered as if written for a term of six months.” La. R.S. 22:636.1A(5) (Italics supplied). It thus did not automatically expire, by its own terms, at the conclusion of the three-month period provided by the policy without some further notice, as required by the statute, to the insured to bring home to her that her liability insurance coverage would terminate without payment on or before the last date of the three-month period.

In holding that the quoted proviso did not mean what it seems unambiguously to state, our brethren of the First Circuit in Arceneaux v. Broussard, La.App., 319 So. 2d 846, to some extent relied upon the placement of the proviso within the definition of “renewal” or “to renew”. The court stated, 319 So.2d 849:

“ * * * The portion of section above quoted relates to ‘Renewal’ of policies to extend the term of coverage and has nothing to do with ‘cancellation’ which is treated in another section. The renewal is not automatic but can only be effected by timely payment of the renewal premium. To hold otherwise would be to completely ignore the statutory recognition of the validity of shorter than six month term policies.”

This conclusion overlooks the unambiguity of the provision, which also by its terms is made applicable for all purposes of the Insurance Code, not just renewal of policies. The conclusion further assumes that, under the interpretation we now adopt, three-month policies are invalidated. However, this interpretation of the statute does not invalidate policies issued for a term shorter than six months, but simply requires the insurer to properly notify the insured if it wishes to cancel coverage within the six month period.

Nor do we find persuasive, in view of the unambiguity of the statutory provision, the defendant insurer’s argument that the only intent reflected by it is to provide a period of guaranteed renewable insurance to the insured: “In other words, the insurer cannot elect not to renew the policy that is issued to the insured so as to terminate the period of desired coverage short of a six month period.”

With regard to this contention, the court of appeal stated, 322 So.2d 845-6: “This construction of the statute would effectively sidestep the purpose of the statutory provision because it does not require notice to the insured of termination of his insurance protection. Although the policy provision is not in direct conflict with the statutory provision, it fails to incorporate the full reach of the legislative intent behind the statute. A clause in an insurance contract may not vary or restrict the effect of a statutory provision of the Insurance Code. LSA-R.S. 22:653. Accordingly, the policy provision in this case does not relieve defendant of its obligation under the statute to give notice of cancellation to plaintiff if it wishes to terminate coverage during the statutory six month policy period for nonpayment of premium.”

In summary, we agree with the Second Circuit’s conclusion in this case as to the intent of the proviso in La.R.S. 22:-636.1A(5) that policies issued for less than a six-month period shall for all purposes of the Insurance Code be considered as if written for a policy period of six months (see 322 So.2d 845) :

“The effect of the statutory provision as we construe it is to require an insurer who wishes to terminate coverage during the statutory six month policy period for any reason (including the failure of the insured to pay a ‘renewal’ premium which fell within the six month period) to comply with the cancellation provisions of the statute. Apparently, the legislature felt there was a danger in writing a policy for a short period of time in that the insured might not be aware that his coverage had terminated. We believe the legislature intended that an insured under a policy written for a short term of less than six months should have the benefit of the cancellation provision of the statute so that he would have adequate notice and opportunity to procure other insurance protection.”

The defendant also relies upon Anthony v. National Grange Mutual Insurance Co., 113 N.H. 486, 309 A.2d 919 (1973), in which the court, in interpreting a statute very similar to the Louisiana provision in question, held that insurance policies are not converted into the presumed term for the purposes there at issue. We find that authority unpersuasive in light of the strong legislative policy of Louisiana in favor of the notice to insureds before coverage is cancelled.

In Broadway v. All-Star Insurance Corporation, 285 So.2d 536, 539 (La.1973), this court stated that “the purpose of notice of cancellation is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance protection.” This purpose behind requiring notice might easily be defeated, if we were to hold that statutory provisions requiring notice of cancellation and of faliure to renew did not apply to short-term polices such as the present. For then, by issuing short-term policies and claiming automatic expiration when the next short-term installment (i. e., denoted as a “renewal” premium) became due, the statutory requirements of notice before cancellation or non-renewal could be evaded.

Decree

For the foregoing reasons, therefore, we affirm the judgment of the court of appeal, at the cost of the defendant.

AFFIRMED.

      . The reinstated policy had actually been issued to her effective only on the date of the delayed payment, not effective on the date of expiration of the former coverage. Further, no issue is raised by the evidence that the term of the policy was not clearly indicated to end coverage March 15; and, without doubt, Mrs. Taylor was mistaken in her belief that the policy included a grace period of payment of the renewal premium.

      . La.R.S. 22:636.1A(5) provides in full:
      “(5) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; provided, however, that any policy with a policy period or term, of less than six months shall for the purpose of this chapter he considered as if written, for a policy period or term of six months. In addition, any policy written for a term longer than one year or any policy with no fixed expiration date, shall for the purpose of this chapter, be considered as if written for successive policy periods or terms of one year, and such policy may be terminated at the expiration of any annual period upon giving twenty days notice of cancellation prior to such anniversary date, and such cancellation shall not be subject to any other provisions of this chapter.” (Italics ours.)

      . We do not reach the additional contention that, even if the present policy coverage could validly expire at the end of three months, the insurer is nevertheless required to give -written notice to its policyholders at least twenty days in advance of its intention not to renew the policy. La.R.S. 22.636.1E, The note by the insurance agent (D-l) asking the insured to come by to discuss the premium is not such a notice.
      Although notice not to renew is not required “in case of nonpayment of premium”, La.R.S. 22:636.1E (2), all premiums in connection with the present coverage were fully paid at the inception of this policy. See La.R.S. 22:636.1A(6), definition of “Nonpayment of premium” as the “failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.” (Italics ours.) In the present case, no premiums for the present coverage were not paid “when due”, and there was no specific notice, as arguably required by Subsection E, that the present three-month coverage would not be renewed if the premiums for the next period were not paid (“when due”) before expiration of the present period.


author: CALOGERO, Justice.

text:
    Walter SHELTON and Rosa Lee Shelton v. AETNA CASUALTY AND SURETY COMPANY.
    No. 57283.
    Supreme Court of Louisiana.
    June 21, 1976.

      Walton J. Barnes, Barnes & Barnes, Baton Rouge, for plaintiffs-applicants.
    William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-respondent.
   CALOGERO, Justice.

This is a suit for damages for personal injury to Rosa Lee Shelton brought by Mrs. Shelton and her husband Walter Shelton against Aetna Casualty and Surety Company, the liability insurer of their son Merle Shelton. Following the filing of this suit, Walter Shelton died and Iris Shelton Ritter, Barney L. Shelton and Lois S. Matherne were substituted as parties plaintiffs for the special damages which Walter Shelton claimed as head and master of the community. La.C.C.P. art. 801.

Mrs. Shelton’s injury occurred when she slipped and fell in the yard of her son’s property. The ownership of the premises and the residences of the parties involved are somewhat unusual. Merle Shelton, the son, owned adjoining Lots 1 and 2 of Square 22 in Standard Heights Subdivision, Parish of East Baton Rouge. His home is located on the front of Lot 1 facing Linwood Street. At the rear of this lot, in a separate structure from the house, is an apartment occupied at the time by Rosa Lee and Walter Shelton, plaintiffs in this suit, under the terms of a usufruct granted them by their son, the owner of the property. Lot 2 is unoccupied except for a wooden garage to the rear of the lot and a concrete driveway leading to the garage. Next to the garage is a garden area, a porch swing hanging from an A-frame and a set of lawn chairs.

The events leading up to Mrs. Shelton’s fall and injury were succinctly set forth in the court of appeal decision, Shelton v. Aetna Casualty and Surety Co., 322 So.2d 308 (La.App. 1st Cir. 1975), and are repeated here, as follows:

“Early in the morning on June 3, 1973, property owner mixed a solution of lime, baking soda and water for the purpose of removing some flaking paint from the garage. After brushing the solution on the side of the brown-painted garage, he washed it down with a hose and departed at approximately 10:00 A.M. for the remainder of the day.
At approximately 6:00 P.M. that same day the elder Mrs. Shelton exited her apartment on Lot 1 and proceeded across the driveway toward the swing area on Lot 2 to sit and converse with her husband and another elderly friend, Mr. Edmond C. Lively. As the seventy-one year old mother reached the far edge of the concrete driveway and stepped upon the dirt pathway leading to the swing, her feet allegedly slipped on the residue which was washed from the garage, and she landed heavily in a sitting position. She was immediately transported to the Baton Rouge General Hospital where she was confined for the next eleven days suffering from a compression fracture of the spine at the fourth lumbar level (L-4). After discharge from the hospital, Dr. F. C. McMains, an orthopedic surgeon, continued to care for her as she still experienced radiating leg pains and required a back support. She was left with a 15 percent permanent residual disability of the body as a result of the fall.
Mrs. Shelton testified that she did not notice anything unusual about the surface of the ground, either before or after she fell, but that some ‘goo’ clung to her dress following the mishap. She acknowledged that she was familiar with and frequented the area with her husband. She also acknowledged that the spot where she slipped had been filled with fresh dirt prior to the incident. She, as well as Mr. Lively, asserted that the residue from the garage had formed a foamy substance which, because of the brown color of the paint being removed, could hardly be distinguished from the ground itself. Mrs. Shelton contended that because of the slippery nature of the substance and its camouflaged color she sustained the injuries of which she complained.
It is also clear from the record that the property owner knew that the area immediately adjacent to the garage was regularly used by his mother and father. It also appeared that the property owner did not attempt to clean or barricade the area to prevent persons from coming in contact with the removed paint and residue.”

The district court concluded that Mrs. Shelton was neither a trespasser nor an invitee, but rather a licensee and that as such she was owed a duty of simply being warned of any dangerous conditions which were known to her son. The court then held that Merle Shelton was not liable for his mother’s injuries, finding that he had not created a dangerous or hazardous condition calling for either removal of the residue or warning of its existence. The district court, however, did hold that Aetna Casualty and Surety Company was liable for $117.75 in medical payments still outstanding to Dr. McMains and awarded judgment in that amount in favor of the substituted plaintiffs.

The court of appeal affirmed the judgment of the district court with respect to liability for plaintiff’s injury. Without specifically denominating plaintiff as either a licensee or an invitee, the court of appeal concluded that, even assuming that Mrs. Shelton was an invitee to whom the higher duty was owed, “the policy considerations underlying her invitee status would not impose a duty upon this landowner to protect her against the injury complained of.” In so holding, the court of appeal placed emphasis on the fact that plaintiff was “accorded the everyday privilege of the use of the landowner’s entire property, and was treated as any other member of the landowner’s household.”

Although affirming the trial court with respect to liability for plaintiff’s injury, the court of appeal reversed the judgment of the district court with respect to Aetna’s liability for the $117.75 in medical expenses, holding that there had been no showing that demand had been made upon Aetna for those payments nor any indication that Aetna had refused to pay the same.

We granted writs upon application of Rosa Lee Shelton, Iris S. Ritter, Barney L. Shelton and Lois S. Matherne, plaintiff and substituted plaintiffs herein.

Liability of a landowner under circumstances such as those involved in the instant case is based on the concept of fault under Article 2315 and 2316 of the Louisiana Civil Code. In order to determine whether liability exists under the facts of a particular case, this Court has adopted a duty-risk approach. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972) ; Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). See Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1 (1973).

It is well settled that for alleged wrongful conduct to be actionable negligence it must be found to be a cause in fact of the resulting harm. Jones v. Robbins, 289 So.2d 104 (La. 1973); Dixie Drive It Yourself System v. American Beverage Company, supra., Mixon v. Allstate Insurance Co., 300 So.2d 232 (La. App. 2d Cir.), writ refused, 303 So.2d 179 (La.1974). This determination of whether the conduct complained of bears a causal connection in fact to the occurrence of the accident is properly made without reference to those policy considerations required when ascertaining liability by the duty-risk approach. Thus if the plaintiff can show that he probably would not have suffered the injury complained of but for the defendant’s conduct, he has carried his burden of proof relative to cause in fact. See Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3rd Cir. 1974); Malone, Ruminations on Dixie Drive It Yourself versus American Beverage Company, 30 La.L.Rev. 363 (1970). In the instant case, as noted by the court of appeal, there is little doubt that the accident would not have occurred but for the presence of the “goo” created when the landowner washed the paint remover off the garage.

A finding that defendant’s conduct was the cause in fact of plaintiff’s injury, however, does not establish liability. In addition, we are required to ascertain whether the landowner breached a legal duty imposed to protect against the particular risk involved. Smolinski v. Taulli, 276 So.2d 286 (La.1973); Hill v. Lundin & Associates, Inc., supra.; Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (1971); Page v. Green, 306 So.2d 847 (La.App. 2d Cir. 1975). In making- this determination, the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Jones v. Robbins, supra.; Hill v. Lundin & Associates, Inc., supra.; Thomas v. Hanover Insurance Co., 321 So.2d 30 (La.App. 3rd Cir. 1975).

Traditionally the duties of an owner or occupier of land, for the purpose of determining liability in negligence actions brought under articles 2315 and 2316 of the Louisiana Civil Code, have been defined in terms of the status of the person entering the land. Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (1970); Foggin v. General Guaranty Insurance Co., 250 La. 347, 195 So.2d 636 (1967); Alexander v. General Accident Fire and Life Assurance Corp., 98 So.2d 730 (La.App. 1st Cir. 1957). This was the approach utilized by both the district court and the court of appeal in the instant case. Recently, however, this Court in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) noted that “[w]e find the common law classifications of invitee-licensee-trespasser to be of little help in applying C.C. 2315.” In so stating, we indicated that the proper test to be applied in determining a landowner’s liability under articles 2315 and 2316 of the Civil Code is “ ‘whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others,’ ” and, as we related, “ ‘although the plaintiff’s status as a trespasser, licensee, or invitee may in light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.’ ” Cates v. Beauregard Electric Cooperative, Inc., supra., quoting Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97,443 P.2d 561 (1968).

Thus in determining the duty owed by Merle Shelton to his mother it is is not necessary to classify Mrs. Shelton as an invitee or licensee, but rather it is appropriate to ascertain this duty by examining the particular facts before us. In this regard we note that Mrs. Shelton and her husband had been given a usufruct to the apartment at the rear of Lot 1. She had, however, implied permission to use the remainder of Lot 1 and Lot 2 on an everyday basis and apparently frequently used the garden and swing area involved in the instant case. Under these facts and circumstances, the landowner owed the plaintiff a duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn his mother of its existence. Natal v. Phoenix Assurance Co., 305 So.2d 438 (La.1974); Foggin v. General Guaranty Insurance Co., 250 La. 347, 195 So.2d 636 (1967); Alexander v. General Accident Fire and Life Assurance Corp., supra.; Millet v. Allstate Insurance Co., 319 So.2d 803 (La.App. 1st Cir. 1975).

We conclude, however, that this duty was not breached. There has been no showing that the condition created when the paint remover was washed off the garage was unreasonably dangerous and thus under these facts we will not impose on the landowner a duty of prior discovery, correction and/or warning. The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Alexander v. General Accident Fire and Life Assurance Corp., supra.; Crittenden v. Fidelity and Casualty Co., 83 So.2d 538 (La.App. 2d Cir. 1955). Such is the situation under the facts of this case, taking into consideration the apparently small area affected by the “solution,” the plaintiff’s familiarity with the property and its ground surface, and the fact that the condition was not especially unlike normally wet ground.

Having concluded that there was no breach of duty on the part of the landowner, we need not inquire whether the risk and harm caused were within the scope of protection afforded by the duty. On the basis of the above discussion, we thus agree with the district court and the court of appeal that the landowner is not liable for the injuries his mother received when she fell on his premises.

With respect to the $117.75 in medical expenses, however, we conclude that it was error for the court of appeal to reverse the lower court judgment in favor of the substituted plaintiffs, Iris Shelton Rit-ter, Barney L. Shelton, and Lois S. Math-erne. While in its answer to the appeal, Aetna Casualty contested this award, the motion and order for appeal and the appeal bond both indicate that only Rosa Lee Shelton, and not the other plaintiffs, perfected an appeal.

Article 2133 of the Louisiana Code of Civil Procedure provides as follows:

“An appellee shall not be obliged to answer unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an ap-pellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s actions.”

The article does provide that by answering an appeal, an appellee, without filing an appeal on his own behalf, may seek relief from any portion of the judgment rendered against him in favor of the appellant. It does not, however, give to an answer the effect of an appeal with respect to any portion of the judgment rendered against him in favor of a party not an appellant. See Shaw v. Travelers Insurance Co., 293 So.2d 568 (La.App. 3rd Cir.), writ denied, 295 So.2d 815 (La.1974); Advertiser, Division of the Independent Inc. v. Tubbs, 208 So.2d 340 (La.App. 3rd Cir. 1968).

For the foregoing reasons, the judgment of the court of appeal which denied the claim for damages by the plaintiff, Rosa Lee Shelton, against the defendants, Merle Shelton and the Aetna Casualty and Surety Company, is affirmed.

The judgment of the Court of Appeal with respect to the $117.75 in medical expenses is reversed and set aside and the judgment of the district court is reinstated and affirmed. All costs of these proceedings are to be paid by appellant, Rosa Lee Shelton.

Affirmed in part, reversed in part, and rendered.

SUMMERS and MARCUS, JJ., concur.


text:
    STATE of Louisiana v. Dorothy Cobb DUBOIS.
    No. 57491.
    Supreme Court of Louisiana.
    June 21, 1976.
    Edwin Dunahoe, Law Offices of Gerard F. Thomas, Jr., Natchitoches, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Andrew S. Vallien, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

We granted writs in this matter to consider whether a sixteen year old defendant’s emancipation by marriage serves to change her status from that of a juvenile to that of an adult so that she may be prosecuted in the criminal courts of this state.

Defendant Dorothy Cobb Dubois was charged by bill of information with “disturbing the peace by being drunk in public” on January 14, 1976. At the time of her arraignment defendant informed the trial court that she was only sixteen years of age, having been born on July 17, 1959, but that she was married. She objected to her arraignment in the Tenth Judicial District Court, sitting as a criminal court, contending that her civil emancipation by marriage did not affect 'her juvenile status and that because of her age she could not be charged and tried as an adult. The trial court overruled her objection. Defendant then entered a plea of not guilty but applied for writs from this Court, which were granted to review the validity of the proceedings.

Under the provisions of the Louisiana Constitution of 1974, the juvenile courts of this state have jurisdiction as provided by law. La.Const. art. 5, § 18 (1974). “Special Juvenile Procedures” are set forth in section 19 of article 5 of the Louisiana Constitution of 1974 which provides as follows:

“Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that 'adult procedures would apply in individual cases. (Emphasis added).”

The provision of law which sets out the jurisdiction of the juvenile courts is contained in La.R.S. 13:1570, which states in relevant part as follows:

“Except as otherwise provided herein, the court [juvenile] shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.” (Emphasis added).

The issue of whether emancipated minors are subject to the jurisdiction of the juvenile or the criminal courts has had a varied history in this state. The provision in the Louisiana Constitution of 1921 relative to the jurisdiction of the juvenile courts contained the phrase “children under seventeen years of age.” La.Const. art. 7, §§ 52, 96 (1921). Following the adoption of the 1921 Constitution, the legislature passed an act defining the jurisdiction and powers of the juvenile courts and providing that “the word ‘child’ whenever used in this Act, shall not apply to emancipated minors.” La.Acts 1921, Ex.Sess., No. 83, § 8. In 1950, however, this statute excluding emancipated minors from juvenile court jurisdiction, was repealed and replaced by a new Juvenile Courts Act, La.R.S. 13:1561-13:1593, which provided that emancipated minors were subject to the jurisdiction of the juvenile courts. In this new act, “child” was defined as “a person less than seventeen years of age, and no exception shall be made for a child who may be emancipated by marriage or otherwise.” La.Acts 1950, No. 82, § 2. Pursuant to this statutory provision, this Court, in State v. Cronin, 220 La. 233, 56 So.2d 242 (1951), held that a juvenile court had jurisdiction over a fourteen year old girl charged with delinquency, even though she was married at the time.

In 1972, however, the provision was again amended and the language “'and no exception shall be made for a child who may be emancipated by marriage or otherwise” was deleted. Thus the definition of the term “child” no longer contains any reference to the applicability or inapplicability of the Juvenile Courts Act to emancipated minors. La.Act 1972, No. 139, § 1. “Child” is currently defined in La.R.S. 13:1569(3) as amended by La.Acts 1975, No. 738, § 1, as follows:

“ ‘Child’ means a person less than seventeen years of age. The term ‘child’ also means a person over seventeen but who committed an act of delinquency before attaining the age of seventeen years. For the purpose of proceedings arising under R.S. 14:403 relative to abuse or neglect of children, the term ‘child’ shall include persons who have not attained eighteen years of age.” (Emphasis added).

The civil laws of this state, while not speaking in terms of “child” or “juvenile,” do address the issue of minority. Article 37 of the Louisiana Civil Code, as amended by La.Acts 1974, No. 91, § 1, states that “[mjinors are those who have not attained the age of eighteen years.” Under the provisions of Article 379 of the Civil Code, “[t]he minor, whether male or female, is emancipated of right by marriage.” The rights of those emancipated by marriage include the right to appear in court without the assistance of a curator, La.C.C. art. 380; the right to demand an account from his tutor, and a settlement of the tutorship, La.C.C. art. 381; and, with certain limitations, the right and power of administration of his estate. La.C.C. art. 382.

In the instant case, the state contends that since La.R.S. 13:1569 is presently silent on the question of whether juvenile courts have jurisdiction over emancipated minors, the term “child” as used in the Juvenile Courts Act should be read to exclude such individuals. In support of this contention the state relies on State v. Gonzales, 241 La. 619, 129 So.2d 796 (1961). In that case, this Court held that the word “child” as used in the definition of the crime “contributing to the delinquency of juveniles,” La.R.S. 14:92, did not encompass emancipated minors, despite the fact that the statute merely stated “any child under the age of seventeen” without any qualification or exception. In reaching this conclusion, the Court in State v. Gonzales, supra, noted as follows:

“. . . it is to be presumed that the Legislature used the word ‘child’ in its ordinary accepted meaning under civil law, that is, a juvenile subject to parental control or guardianship and that it does not include a minor emancipated by marriage. Had it been its design to extend the law to all minors under the age of seventeen, irrespective of their legal status, the lawmaker would have used the word ‘person’ or ‘anyone’ under seventeen instead of ‘child’.”

State v. Gonzales, supra., however, did not involve the issue of criminal or juvenile jurisdiction with respect to emancipated minors, but rather involved an adult charged with a criminal offense. Thus its holding with respect to the appropriate definition of “child” is not directly pertinent to the question of whether an emancipated minor may be arraigned as an adult or is subject to the exclusive jurisdiction of the juvenile courts.

Defendant in the instant case argues that the concept of emancipation is civil in nature, and is therefore not pertinent to this question. We agree with defendant’s position and hold that the fact that a person under seventeen years of age has the status of an emancipated minor for the purpose of the civil laws of this state does not change his or her status as a juvenile for the purpose of our criminal statutes.

With certain specified exceptions, none of which are applicable in the instant case, the Louisiana Constitution of 1974 provides that “the determination of guilt or innocence, the detention and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures . . ..” (emphasis added). La.Const, art. 5, § 19 (1974). In addition, the Juvenile Courts Act states that the juvenile courts shall have exclusive original jurisdiction in a proceeding “[cjoncerning any child . who violates any law or ordinance. . .”, and defines child as “a person less than seventeen years of age.” La.R.S. 13:1569 (3); 1570A(5). This constitutional and statutory language is clear and free from ambiguity. Thus as the applicable provisions contain no qualification with respect to emancipated minors, no such qualifications will be read in by this Court. Furthermore, the use of the word “person,” rather than the word “child,” in section 19 of article 5 of the Louisiana Constitution of 1974 clearly indicates that the jurisdiction of the juvenile courts was intended to extend to all individuals who are alleged to have committed a crime prior to their seventeenth birthday. See the second sentence in the language from State v. Gonzales, supra., quoted above.

We conclude that defendant’s emancipation by marriage has not changed her juvenile status with respect to the charge filed against her, i. e., “disturbing the peace by being drunk in public.” As she was only sixteen years of age at the time of the commission of the alleged offense, she cannot be properly arraigned and tried in the district court for the Parish of Natchitoches, sitting as a criminal court. Rather the proceedings should be transferred to the court’s juvenile division.

For the reasons assigned, the ruling of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . In the Parish of Natchitoches, as well as in most of the parishes of this state, the district court has jurisdiction over both civil and criminal matters and, in addition, the judges of the district court are ex officio judges of the juvenile court for that parish. La.R.S. 13 1661.1.

      . As a matter of interest, it is noted that the statute involved in State v. Gonzales, supra, was amended the following year to include the language “no exception shall be made for a child who may be emancipated by marriage or otherwise.” La.Acts 1962, No. 394, § 1.