author: DENNIS, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Charles RISEN.
    No. 60862.
    Supreme Court of Louisiana.
    April 10, 1978.

      Loyola Law School Clinic, William J. O’Hara, III, Supervising Atty., Charles N. A. Gould, Student Practitioner, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Charles Risen was charged by bill of information with possession of heroin in violation of La.R.S. 40:966. On May 12, 1977, after trial by jury, the defendant was found guilty of attempted possession of heroin, a responsive verdict. Subsequently the State filed a bill of information pursuant to La.R.S. 15:529.1 charging the defendant as a multiple offender. After amendment of the original multiple bill, the defendant admitted the allegations charged and was sentenced to serve ten years at hard labor.

On January 6, 1977, at approximately 8:40 p. m., New Orleans police officers William Nichols and Earl Frizzard, in the course of an investigation, stopped at Hilda’s Bar located on the corner of Flood and Robertson Streets in New Orleans to question some individuals. When they had concluded their interviews, Officer Frizzard waited while Officer Nichols went to use the restroom. As he opened the restroom door, Officer Nichols observed the defendant and two other individuals crowded around a commode and saw the defendant shove a plastic envelope in the open part of a toilet paper roll. The officer removed the plastic envelope, observed a number of tin foil packets inside, and arrested the defendant. The two companions were also arrested but were not tried with the defendant.

In the trial court five assignments of error were filed on behalf of the defendant. In brief, no argument has been presented in connection with assignment of error number five. Therefore, it will not be discussed in this opinion.

At the trial on the merits, the State called police officer David Peralta and qualified him as an expert in the field of identifying track marks. Officer Peralta testified that on the date of the defendant’s arrest, he examined the defendant and found evidence of track marks consisting of both scabs and fresh punctures. All of the assignments of error relate to the admission of Peralta’s testimony about track marks.

ASSIGNMENT OF ERROR NO. 1

In assignment of error number one the defendant contends that the trial court’s failure to exclude Peralta’s testimony was reversible error because the State had answered “not applicable” to a question contained in the defense’s application for bill of particulars, which read as follows:

“If the State intends to offer evidence of other criminal offenses under exceptions outlined in R.S. 15:445 and 15:446, please furnish a statement of the specific acts or offenses it - intends to so offer along with a specification of the exception to the general exclusionary rule upon which the State relies for the admissibility of the evidence.”

For the reasons stated below, Peralta’s testimony amounted to the introduction of other crimes evidence outlined in La.R.S. 15:445 and 15:446. Therefore, if the State intended to introduce this evidence at the time it answered the bill of particulars its response was incorrect. However, the defendant’s failure to object to the evidence on the grounds that it varied from the bill of particulars constituted a waiver of his objection to this irregularity or error. State v. Glover, 304 So.2d 348 (La.1974); State v. Smith, 139 La. 442, 71 So. 734 (1916); see also,, La.C.Cr.P. art. 488.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Similarly, in assignment of error number two the defendant contends that the introduction of Peralta’s testimony resulted in prejudicial error because the State had answered “the defense is not entitled to this information” when, in the application for bill of particulars, it was asked the following:

“Has any of the evidence in this matter been subjected to scientific testing or chemical analysis of any kind, and if so, please furnish in detail such tests used and the results achieved.”

It is the defendant’s position that the inspection by Officer Peralta of the defendant’s arm shortly after his arrest was a “scientific test” and that the results of the inspection should have been furnished to the defendant before trial. Because of the nature of the case, however, the question appears to refer only to any tests which may have been performed on the substance seized from the defendant in the restroom. Accordingly, the State reasonably could have failed to associate the defendant’s interrogatory with the inspection of defendant’s arm for track marks.

This assignment is without merit. •

ASSIGNMENT OF ERROR NO. 3

By assignment of error number three defendant argues that the trial court erred in allowing the introduction of Peralta’s testimony over his timely objection that this evidence exceeded the scope of the State’s opening statement.

The prosecuting attorney apparently began to refer to the track marks evidence in his opening statement when he stated “I will also have another New Orleans Police Department officer who works in the Narcotics Division and has done so for a long time who will explain . ..” At that point, however, he broke off the statement and began to discuss other matters. The reason for the incomplete statement does not appear from the record. The State contends in brief that the reference was terminated because the trial judge had not ruled on the admissibility of the track marks and that it might have been considered prejudicial error to refer to it in the opening statement and then not adduce any testimony with respect thereto during the course of the trial. In brief, defense counsel suggests that the prosecutor’s action in this regard indicates possible bad faith on his part.

Article 766 of the Louisiana Code of Criminal Procedure requires the State to set forth “in general terms,” the nature of the evidence by which it expects to prove the charge. Evidence “not fairly within the scope of the opening statement” may not be admitted unless the trial court, within its discretion, finds that the evidence was “inadvertently and in good faith omitted” and that its admission will not surprise or prejudice the defendant in the preparation of his defense. La.C.Cr.P. art. 769.

The trial judge’s overruling of the defendant’s objection indicates that he either considered the evidence concerning track marks to be fairly within the scope of the opening statement or found that its admission merely remedied a good faith omission from the opening statement without prejudice to the preparation of the defense. In previous decisions, we have held that the State need not give in minute detail all evidence by which it intends to prove its case. E. g., State v. George, 346 So.2d 694 (La.1977). The defendant presumably was aware of the inspection of his track marks by Officer Peralta. The defense attorney was apprised by the opening statement that a New Orleans narcotics officer would be called as a witness. The State’s explanation for the lack of specificity in the opening statement was plausible. In view of these factors, we cannot say the trial judge erred or abuse his discretion by admitting the testimony.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment defendant contends the trial court committed reversible error by overruling his objection to the prosecuting attorney’s reference to Officer Peralta’s testimony during closing arguments. Since we have concluded that the officer’s testimony was properly admitted, it follows that a reference to it in closing argument was not objectionable.

This assignment is without merit.

Prieur Notice Argument

Defendant has in brief presented argument on an additional issue. It is the defendant’s position that evidence of the track marks was evidence of other criminal acts of the accused introduced under the provisions of La.R.S. 15:445 and 15:446 to show intent or knowledge and that since no notice setting forth the State’s intention to introduce the evidence was filed prior to trial as required by State v. Prieur, 277 So.2d 126 (La.1973), the evidence should have been excluded.

In State v. Prieur, supra, this Court outlined the procedure to be followed by the State when it intends to introduce other crimes evidence for the purpose of showing knowledge or intent. This procedure requires the State to furnish the defendant with written notice including a statement of the acts or offenses it intends to offer within a reasonable time before trial. State v. Prieur, supra, and its progeny also established as prerequisites to the introduction of other crimes evidence a finding by the trial court that there is clear and convincing evidence of the commission of the other crime and of the defendant’s connection therewith; that the evidence of the other crimes be found relevant to a material fact actually at issue; and that the trial court balance all pertinent factors and exclude the other crimes evidence, even if independently relevant, when its probative value is outweighed by its prejudicial effect. See, State v. Sutfield, 354 So.2d 1334 (decided January 30, 1978); State v. Ledet, 345 So.2d 474 (La.1977); State v. Gaines, 340 So.2d 1294 (La.1976); State v. Moore, 278 So.2d 781 (La.1973).

On this issue the State presents somewhat inconsistent arguments. First, it contends that track marks on a suspect at the time of his arrest tend to prove guilty knowledge that the substance possessed by him is heroin, because of his prior use of it. On the other hand, however, the State also argues that the track marks evidence does not relate to a crime but only to the defendant’s status as a drug user.

The latter argument by the State does not appear to be realistic. Although we recognize that a state cannot make it a crime for a person to be addicted to the use of narcotics, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the likelihood of a person contracting the illness of narcotics addiction innocently or involuntarily would appear to be very small. Moreover, the possibility of an addict’s sustaining his habit, however contracted, without committing unlawful acts of drug possession would seem to be smaller still. Consequently, evidence of narcotics injections will almost always constitute evidence of prior criminal acts of illegal narcotics possession.

Accordingly, we conclude that the evidence of track marks was evidence of other criminal acts such that the prerequisites set forth in Prieur were applicable. However, after carefully studying the record, we find none of defendant’s objections were based on the State’s failure to give a Prieur notice before trial. Even when given their broadest construction, defendant’s objections did not fairly apprise the trial judge of this irregularity in the proceedings as required by law. La.C.Cr.P. art. 841. Before and during Officer Peralta’s testimony defense counsel objected on the basis that the evidence exceeded the scope of the opening statement and that it was irrelevant. Neither of these objections reasonably could have directed the trial judge’s attention to the absence of a Prieur notice. Therefore, although we find merit in defendant’s argument in brief on this issue, we conclude that the question was not raised during trial or preserved for us on appeal. For the same reason we pretermit the additional questions of whether the track marks evidence was relevant to a material fact actually at issue in the instant case and whether the probative value of this evidence was outweighed by its prejudicial effect.

CONCLUSION

Although we conclude that evidence of track marks on defendant’s arm at the time of his arrest constituted evidence of other crimes, i. e., unlawful acts of narcotics possession, such that the prerequisites set forth in State v. Prieur, 277 So.2d 126 (La.1973) were applicable, the introduction of this evidence did not amount reversible error because the State’s failure to comply with the Prieur rules was not raised by a proper objection before verdict.

The defendant’s conviction and sentence are affirmed.

SANDERS, C. J., and SUMMERS, J., concur.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

After defendant’s arrest for the instant offense, track marks consisting of both scab and fresh punctures were discovered on defendant’s person. Evidence that defendant bore track marks at the time of the commission of the crime was relevant to prove defendant’s guilty knowledge that the substance possessed by him was heroin, an essential element of the crime charged. I disagree with the majority opinion that Peralta’s testimony concerning the existence of track marks at the time of arrest amounted to the introduction of evidence of other crimes under La.R.S. 15:445 and 446 which was subject to the procedural guidelines set forth in State v. Prieur, 277 So.2d 126 (La.1973). Hence, I concur in the result only.


source: Caselaw Access Project

author: CALOGERO, Justice. DENNIS, Justice, MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Gary Keith AGUILLARD.
    No. 61001.
    Supreme Court of Louisiana.
    April 10, 1978.

      Monty L. Doggett, Trial Counsel, Makar, Whitaker & Doggett, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Andrew S. Vallien, Asst. Dist. Atty., Natchitoches, for plaintiff-ap-pellee.
   CALOGERO, Justice.

Gary Keith Aguillard was charged by bill of information with possession of a controlled dangerous substance, cocaine, a violation of R.S. 40:967(C). After originally pleading not guilty defendant changed his plea to guilty while specifically reserving his right to seek appellate review of a pre-plea trial court ruling. Following his plea defendant was sentenced to serve three (3) years at hard labor in the custody of the Department of Corrections.

A plea of guilty generally waives all non-jurisdictional defects in the pre-plea proceedings. However, by virtue of this Court’s decision in State v. Crosby, 338 So.2d 584 (La.1976) a defendant may condition his plea upon the reservation for appellate review of specified pre-plea errors. See also, State v. Williams, 340 So.2d 1382 (La.1976). In the present case defendant has properly reserved his right to obtain appellate review of the trial court’s denial of his motion to suppress. Accordingly our review of defendant’s conviction and sentence is limited to a review of the trial court’s refusal to suppress the evidence which was taken from defendant’s person after a search which is alleged to have been incident to a lawful arrest.

The parties submitted the motion to suppress on the evidence presented at a preliminary hearing. That evidence, consisting exclusively of the testimony of the arresting police officer, reveals the following circumstances surrounding defendant’s arrest and search.

Around 4:30 p. m. on September 14,1976, Officer Danny Dison, a member of the Natchitoches Police Department, received a phone call from a “reliable informant,” one who had given the officer information in the past. The informant told the officer that a male subject from out of town was in the company of Johnny “Speedy” Edwards, a known drug dealer in the area, and was selling cocaine. The informant contacted another police officer, Officer Delphin, around 5:00 p. m. On neither occasion did the informant give defendant’s name or his description other than that he was male and from out of town. Acting on this information Officer Dison, in an unmarked police vehicle, drove around the city in an attempt to locate “Speedy” Edwards. Within a few minutes Dison observed Edwards at a service station situated on. the highway with a male subject, later identified as defendant, standing on the passenger side of a vehicle. In the rear seat of the vehicle were another man and a woman. Dison passed again in front of the station and radioed for assistance. When assistance arrived, Dison drove into the station while another unmarked police vehicle approached from the opposite direction. When defendant noticed the second unmarked car he turned and ran in the opposite direction toward Officer Dison who apprehended him and placed him up against a vehicle. The officer then patted defendant down and seized six tin foil packets of cocaine from his right trouser pocket: Defendant was then placed under arrest and advised of his Miranda rights. Dison admitted that the packets of cocaine did not feel like a dangerous weapon during the patdown of defendant. He further testified that the three remaining subjects were also searched but, since no illegal drugs were found on their persons, they were released. After considering this evidence, the trial judge denied defendant’s motion to suppress.

In our recent decision in State v. Franklin, 353 So.2d 1315 (La.1977) we related that a warrantless search and seizure is presumed to be unreasonable, and thereby violative of both federal and state constitutions, unless the state meets its burden of proving that the search was justified under one of the narrow exceptions to the rule requiring a search warrant. As also stated in State v. Lain, 347 So.2d 167, 170 (La.1977): “It is clear that under the Fourth Amendment to the United States Constitution as well as Louisiana Constitution Article I, § 5, a warrantless search is ‘per se unreasonable’ unless it falls within a limited number of well delineated exceptions to the warrant requirement.”

In the present case defendant was subjected to a full search and was not merely frisked for weapons. Such being the case the only possible exception applicable to the present situation is that of a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). See also, State v. Marks, 337 So.2d 1177 (La.1976). A search in such situations is permitted to facilitate discovery of weapons which might threaten the safety of the police and to prevent the concealment or destruction of evidence. State v. Marks, supra.

The state argues that the search was valid because defendant was under arrest at the time. They contend that the fact that the arresting officer failed to announce that defendant was under arrest until after the search was conducted is of no consequence because the point at which a person is considered to be under arrest is not necessarily determined by the verbal expression of the arresting officer. Rather the state contends that defendant may be, and in fact was, under arrest in this instance, from the time he was apprehended by the arresting officer, i. e., the point where defendant’s freedom of movement was unmistakably restrained.

It is of course true that an arrest may be effected simply upon apprehension and restraint. State v. Marks, 337 So.2d 1177 (La.1976). It is equally true, however, that apprehension and restraint may be a form of detention short of a purposeful arrest, or taking into custody. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1969). Even assuming that an arrest took place it must be shown that such arrest was lawful, that is, supported by probable cause.

Two pertinent inquiries, then, are did the officer have probable cause to arrest defendant, and did he in fact arrest defendant before searching him.

We find it unnecessary to answer the first of the foregoing questions. Had the officer felt that he had probable cause and acted on that belief by arresting defendant, we would perhaps conclude that probable cause existed in light of the facts which were cited hereinabove. Inasmuch as the officer did not decide to arrest defendant, irrespective of the actual apprehension and restraint (obviously an intended short detention), until he had first searched him and found the packs of cocaine, we find that he had not in fact arrested defendant prior to the search. Therefore, the warrantless search was not lawful as there was no arrest, either lawful or unlawful, to which it could have been incident.

Decree

For the above reasons defendant’s conviction and sentence, including his guilty plea, are vacated, and the case is remanded to the district court for further proceedings not inconsistent with the views expressed herein.

CONVICTION AND SENTENCE REVERSED, PLEA VACATED, CASE REMANDED.

SANDERS, C. J., and SUMMERS, J., dissent.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

An arrest occurred. However, there were no underlying circumstances to support the officer’s determination that the informant was in a position to know that defendant had drugs within his possession. Therefore, probable cause for arrest had not arisen at the time of the seizure of defendant’s person.

I respectfully concur.

MARCUS, Justice

(dissenting).

A reliable confidential informant had told police officers that a male subject from out of town was in the company of Edwards, a known drug dealer in the area, and was selling cocaine. After locating Edwards at á service station, the police officers drove into the station at which time they were observed by defendant. Defendant’s flight from the approaching officers ripened the reasonable cause to stop defendant which was created by the earlier tip into probable cause to arrest defendant. When defendant was apprehended and placed under restraint against the vehicle, he was clearly under arrest. The subsequent search of defendant was justified as an incident to a lawful arrest. Accordingly, I respectfully dissent.

      . La.C.Cr.P. art. 201, provides:
      Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

      . The officer testified rather pointedly that the arrest (which he did not announce until he had first patted the defendant down and discovered the cocaine) was based upon what he found in the search of defendant’s person.


author: SANDERS, Chief Justice.

text:
    Robert JASMIN v. GAFNEY, INCORPORATED and Northern Assurance Company.
    No. 61009.
    Supreme Court of Louisiana.
    April 10, 1978.

      James H. Drury, Drury, Lozes & Curry, New Orleans, for defendants-respondents.
    Charles R. Chesnutt, III, New Orleans, for plaintiff-applicant.
   SANDERS, Chief Justice.

In this case, we must determine whether an appeal, mistakenly dismissed with prejudice, may be reinstated.

In plaintiff’s suit for workmen’s compensation, the trial court awarded defendant $65 per week for not more than 500 weeks.

Defendants timely perfected an appeal. However, before review of the judgment, defendants moved for dismissal of their appeal with prejudice, alleging settlement. The Court of Appeal dismissed defendant’s appeal on October 22, 1975.

As the defendants made no payments, plaintiff filed a rule nisi to make the January 14, 1975 judgment executory and to accelerate all payments. Consequently, defendant filed a counterrule, seeking to have the amount due plaintiff reduced to the $18,000 settlement agreed upon by counsel. The trial court denied defendant’s motion, but stayed all proceedings without ruling on plaintiff’s motion.

The Court of Appeal granted defendants’ application for supervisory writs and recalled its earlier dismissal of defendants' appeal, reinstating the appeal.

Plaintiff then applied to this Court for supervisory writs, which we granted. Jasmin v. Gafney, La., 352 So.2d 1031 (1977).

After our review of the law and the proceedings, we have determined that the Court of Appeal erroneously reinstated defendants’ appeal.

In October of 1975, while the appeal was pending, counsel for the litigants agreed upon a $14,500 settlement. Under LSA-R.S. 23:1272, any settlement must be judicially approved. Therefore, counsel for defendants had the record returned to the trial court by submitting a motion to dismiss the appeal with prejudice on October 22, 1975, stating: “that the matter had been settled and compromised. . . .” Consequently, the Court of Appeal dismissed the appeal with prejudice.

However, plaintiff declined the $14,500 settlement negotiated by his attorney. In April of 1976, counsel for the litigants renegotiated and again agreed to an $18,000 settlement. The attorneys submitted this $18,000 settlement to the district judge who conditioned his approval upon its submission in a joint verified petition in accordance with LSA-R.S. 23:1272.

When confronted by his attorney with the necessary papers for his signature, plaintiff again refused the settlement offer renegotiated by his attorney.

Defendants argue that plaintiff’s compensation benefits should be reduced to the amount reached in settlement negotiations between counsel. Like the Court of Appeal, we find that plaintiff did not agree to any settlement offer. It is of no moment that his attorney found the negotiated settlement satisfactory.

A settlement must be in writing. LSA-C.C. Art. 3071. LSA-R.S. 23:1272 specifically provides that a workmen’s compensation compromise must be approved by the court upon a joint petition verified by all parties. Therefore, absent compliance with this procedure, there is no settlement.

Alternatively, defendants sought to have the Court of Appeal reinstate their appeal which they had dismissed with prejudice, stating: “that the within matter has been settled and compromised. . . . ”

Relying upon LSA-C.C. Art. 1825, the Court of Appeal concluded that the defendants dismissed the appeal with prejudice based upon an error of fact, that the compromise had been approved by plaintiff, and that formalization would follow.

LSA-C.C. Art. 1825 provides:

“The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.”

We find the Court of Appeal’s reliance upon Article 1825 misplaced. Defendants’ motion to have the appeal dismissed is not a contract. Moreover, the plaintiff did not join in the motion.

Defendants voluntarily dismissed their appeal with prejudice over twenty-three months ago. Our research discloses no authority permitting a reinstatement. Thus, we conclude the Court of Appeal erred in reinstating the appeal.

For the reasons assigned, the judgment of the Court of Appeal reinstating the appeal is reversed. The case is remanded to the district court for further action consistent with the views herein expressed.

      . Plaintiff later discharged his attorney and retained his present attorney.

      . LSA-C.C. Article 3071 provides:
      “A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      “This contract must be reduced into writing.”

      .LSA-R.S. 23:1272 provides in pertinent part:
      “The agreement entered into between the employee or his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto. The judge to whom the petition is presented shall, in every case, discuss the settlement and its terms with the employee or his dependents. * * ”

      . The defendants’ petition for dismissal did not state that plaintiff concurred in the dismissal. Plaintiff, however, was served with the petition for dismissal.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Roger Dale YATES.
    No. 61035.
    Supreme Court of Louisiana.
    April 10, 1978.

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

Roger Dale Yates was indicted for the first degree murder of John B. Perry, in violation of R.S. 14:30. A unanimous jury of twelve found defendant guilty as charged. Subsequently defendant was sentenced to death by electrocution. On appeal defendant relies upon four assignments of error for reversal of his conviction and sentence, having abandoned four assignments.

Assignment of Error No. 2

Defendant was initially arrested for the unauthorized use of a credit card issued in the name of the victim, John B. Perry, Jr., while attempting to purchase a television set from a Sears, Roebuck in Jefferson Parish. The sales clerk became suspicious, called in the assistant credit manager who in turn summoned the Sears security guard, Leonard Brown. Objection here is made to Brown’s testimony about an inculpatory statement defendant made while being questioned by the security guard.

Brown testified he removed defendant from the credit office to the security office where defendant consented to have his jacket searched. In the jacket pocket was a wallet containing numerous credit cards in the name of John B. Perry, Jr. Defendant objected to Brown’s continued testimony regarding anything defendant said to him; he argued that no Miranda warnings were given by the security guard, and thus the statements would be inadmissible. The trial judge overruled defendant’s objection, stating that the requirements of Miranda did not extend to detention of shoplifters under C.Cr.P. 215. Brown then proceeded to testify about the conversation that ensued:

“I asked him his name. Let me retrack (sic). I asked him how he obtained the card. He said, his father gave it to him as a gift. And, I asked him his name, and he said, ‘My name is Robbie.’ I said, ‘What is your given name at birth?’ He said, ‘Sometimes they call me Robbie.’ And, I said ‘What is your name?’ He said, ‘It’s right there on the card that you have in your hand.’ I said, ‘What is written on the card?’ He said, ‘My name.’ I said, ‘What is it?’ He said, ‘They just call me Robbie.’ At that time, I knew it wasn’t his card.”

C.Cr.P. 215, a special article for dealing with shoplifters, allows a peace officer, merchant, or the merchant’s specifically authorized employee to use reasonable force to detain a person for questioning on the merchant’s premises for a period of up to sixty minutes when he has reasonable cause to believe the person has shoplifted merchandise. The trial judge determined that because article 215 specifies that “the detention [does not] constitute an arrest,’.’ Miranda was not applicable to the instant situation. The requirement that Miranda warnings be given, however, does not turn on whether or not an individual has been “arrested.” Rather, Miranda applies when an individual is subjected to “custodial interrogation,” defined by the United States Supreme Court as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. State of Arizona, 284 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). (Emphasis added).

The trial judge’s stated reasons in not requiring Miranda warnings under C.Cr.P. 215 were not correct. However, the result was correct, and the defendant’s statements were admissible, because he was not “in custody” within the meaning of Miranda. Brown testified that although defendant was detained, “the door was open. He could leave of his own free will.” This testimony was uncontradicted. Since he was free to depart, defendant was not subjected to the kind of coercive environment that would bring Miranda into operation. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). See State v. Himel, 257 So.2d 670 (La.1972).

There was no error by the trial court in admitting testimony about defendant’s remarks to the security guard into evidence.

Assignments of Error Nos. 3 and 5

These assignments were taken to the admission into evidence of defendant’s written confession. Defendant argues that the interrogating officer’s failure to read the entire “rights of arrestee” form to him prior to his giving the statement violated his Miranda rights.

Officer George Florane testified he orally advised defendant of his right to counsel, but rather than continuing to read the rest of the rights enumerated on the rights of arrestee form, he handed defendant the form to allow him to read it himself. According to Officer Florane, defendant indicated he understood his rights and desired to give a statement. On the written statement itself appeared recitations that defendant had read the form as instructed, understood his rights, and desired to give a statement. The form was signed and the statement was given between 4:45 and 6:30 p. m. on March 18, 1975.

The record reveals that defendant was read his rights by a Jefferson Parish deputy sheriff at approximately 6:00 p. m. on March 17, 1975, when he was arrested for the theft at Sears. Also, at approximately 12:30 p. m. March 18, when defendant was arrested on the murder charge and taken from the custody of Jefferson Parish officials by Detective George Heath of the New Orleans police department, he was advised of his rights. Defendant then gave an oral confession to Detective Heath, the substance of which was virtually identical to the written statement.

Defendant took the stand and admitted signing the rights of arrestee form and the written statement, but denied being allowed to read them. He also testified to certain instances of abuse prior to giving the statement. Both Officers Florane and Heath stated that defendant was not threatened, coerced, beaten or induced in any way, or deprived of cigarettes. The trial judge, who viewed the witnesses and was in a position to evaluate their credibility, found the statement to be voluntary. His conclusions will not be disturbed on appeal unless unsupported by the evidence. See, e. g., State v. Scott, 355 So.2d 231 (1977); State v. Trudell, 350 So.2d 658 (La.1977); State v. Cobbs, 350 So.2d 168 (La.1977); State v. Scott, 344 So.2d 1002 (La.1977); State v. Simmons, 340 So.2d 1357 (La.1976).

Although defendant was not read all the “Miranda" rights immediately before giving the written statement, we have previously held that:

". . . The Miranda Court fixed no ironclad procedure for advising an accused of his rights. There is no requirement that the rights be orally explained to a defendant; rather, the requirement is that the defendant understand his rights, and, if he chooses to waive them, that he do so intelligently and voluntarily.” State v. McNeal, 337 So.2d 178, 180 (La.1976).

In McNeal, supra, we recognized that certain factors supported a conclusion that the defendant was effectively informed of his rights and intelligently waived them:

“. . . (1) the defendant signed the rights form on the waiver and the confession; (2) he informed the officers that he read and understood his rights; (3) the officers testified that they saw him read the forms and that he indicated that he understood them; and (4) defendant can read and write and has a twelfth grade education.” 337 So.2d at 181.

In the instant case the first three factors were present, accepting the trial judge’s apparent evaluation of the police officers’ version as true. However, defendant possessed only an eighth grade education. Even if reaching such an educational level should not carry a presumption that defendant could read and write, we are still satisfied that defendant was adequately informed of his constitutional rights. Defendant was read his rights upon his arrest at Sears on March 17 and again by Detective Heath prior to giving his oral statement on March 18, only four hours before defendant gave the written statement.

Hence, we conclude that the trial judge correctly ruled defendant’s inculpatory statement to be free and voluntary and properly admitted it into evidence.

Assignment of Error No. 6

As defendant correctly urges, the death sentence imposed upon him must be vacated. The mandatory death penalty required by R.S. 14:30, Acts 1973, No. 109, has been declared unconstitutional. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Thus, the case must be remanded for resentencing to the most serious penalty at the time for the next lesser included offense, State v. Jenkins, 340 So.2d 157 (La.1976), that being second degree murder requiring life imprisonment without the benefit of parole, probation or suspension of sentence for a period of twenty years. R.S. 14:30.1, Acts 1973, No. Ill, § 1..

For the reasons assigned, defendant’s conviction is affirmed, but the death sentence imposed upon him is annulled and set aside, and the case is remanded to the district court for resentencing to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.

SANDERS, C. J., concurs.

      . Defendant alleged that a detective named “George” beat him with a flashlight, a police officer opened a wooden door in his face injuring his eye, another officer wrapped a large snake around his head and neck and hit him in the ribs, and he was denied any cigarettes until he would sign the statement.

      . Should we have ruled that the written statement was improperly admitted, we would conclude that this was not reversible error. Defendant’s oral confession to Detective Heath, which was essentially the same as the written statement, was properly admitted. (Defendant makes no claim that this statement was involuntarily given). Thus, the jury had the damaging information before it even were the written statement excluded.


author: CALOGERO, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Tyrone BRAUD.
    No. 61063.
    Supreme Court of Louisiana.
    April 10, 1978.
    Clement F. Perschall, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Tyrone Braud was charged with possession of a controlled dangerous substance, to wit: barbiturates, a violation of R.S. 40:966. Defendant pled not guilty, waived jury trial, and was found guilty as charged in a bench trial. He was sentenced as a second offender to serve two years imprisonment at hard labor. On appeal he urges us to reverse his conviction and sentence on the basis of two assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant complains in his first assignment that his motion to suppress evidence was wrongly denied. In his second assignment defendant urges that the trial judge erred in admitting into evidence the barbiturates taken from his car.

The seizure complained of occurred in the following manner. In the very early morning hours of September 20, 1974, defendant was stopped while driving his car by two policemen who noticed that his brake tag was old and tattered. They stopped defendant’s car to check for an expired brake tag. As one of the officers, Officer Casanova, approached the driver’s side of the vehicle he saw defendant take something out of his pocket and stuff it down beside the seat. When the officer asked defendant to get out the car he noticed loose marijuana lying on defendant’s lap and scattered on the floorboard. Defendant Braud got out of the car, and the officer gathered up as much marijuana as he could from the seat. Also, he picked up from the floorboard area between the driver’s seat and the door an open brown envelope containing marijuana and a brown pill bottle which was beside the envelope. Defendant was issued a citation for his expired brake tag and was arrested for drug possession. The material in the envelope proved to contain marijuana, and the unlabeled brown pill bottle proved to contain barbituates. Defendant’s prosecution for possession of barbiturates followed, and it is the seizure of the pill bottle containing the barbiturates of which he now complains.

Defendant Braud’s testimony did not contradict the officer’s testimony in any important particulars. He stated that he pulled over when he saw the officer’s lights, got out of the car and voluntarily produced his license. The officer, he said, told him to stand by the police car, and he complied. He stated that the officer did shine a flashlight into the car (the officer had testified that he could not remember whether he had used a flashlight or not), but he said that he (defendant) could not see from what area of the car the envelope and bottle were seized. He said that the marijuana and pill bottle did not belong to him. The two other persons in the car were not called to testify at the hearing.

In a case where a warrantless search has been conducted, the state, in order to properly overcome a defendant’s motion to suppress, must show that the search was conducted under one of the well recognized exceptions to the warrant requirement. State v. Franklin, 353 So.2d 1315 (La.1977). One of these exceptions is the plain view doctrine, and we find that the state here did establish that the evidence was in plain view. Initially the officers were justified in stopping defendant’s car because they suspected that it carried an expired brake tag because the tag was old and tattered.

It is well established that evidence in the open or plain view of a police officer who is legally on the premises from which he obtains the view is subject to seizure without a warrant. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Williams, 347 So.2d 231 (La.1977); State v. Fearn, 345 So.2d 468 (La.1977). It is equally clear that the object may be seized only where it is apparent that the object is contraband or evidence. State v. Meichel, 290 So.2d 878 (La.1974).

We believe that the officer’s observation of the loose marijuana lying in the front seat and on the floorboard between the seat and the door gave him the right to seize the brown envelope containing obvious marijuana. In reaching for this envelope he found beside it a single unmarked and unlabeled pill bottle. Unlike the pill bottle in State v. Meichel, supra, which bore a manufacturer’s label and which the seizing officer did not suspect of being contraband until he had picked it up and examined it, here the pill bottle was entirely unmarked and seemed to be contraband because of its placement in the car immediately next to the container of marijuana. Under these circumstances we find that the officer’s seizure of the pill bottle was properly made because it was contraband in open view.

Decree

For this reason, defendant’s conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

In the motion to suppress hearing involving a warrantless search the trial court incorrectly placed the burden of proof on the defendant. See, State v. Franklin, 353 So.2d 1315 (La.1978). The case should be remanded for redetermination of the motion based on correct principles of law.

I respectfully dissent.

      . Two other assignments were not argued and are deemed abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).


author: SANDERS, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Ronald D. ANDERSON.
    No. 61084.
    Supreme Court of Louisiana.
    April 10, 1978.

      Sumpter B. Davis, III, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-relator.
    Frank J. Gremillion, Baton Rouge, as amicus curiae.
   SANDERS, Chief Justice.

The State charged the defendant, Ronald D. Anderson, with possession of pethidine, a violation of LSA-R.S. 40:967. The defendant filed a motion to suppress, and the district court sustained it. We granted the State’s writ application to review this ruling. State v. Anderson, La., 352 So.2d 1040 (December 9, 1977, No. 61,084).

On February 8, 1977, Officer J. P. Thompson executed the following affidavit for a search warrant:

“Affiant informs the Court that on Feb. 8, 1977 affiant was contacted by a confidential and reliable informant who has been working under the direct supervision of affiant for the past (5) five months and who has provided affiant with information which has led to the arrest of at least (6) persons on narcotics violations in East Baton Rouge Parish and further, who has provided information which has led to the seizure of contraband which has been proven to be controlled by the Louisiana State Police Crime Lab.
“Affiant further informs the Court that above confidential informant stated that on or about Feb. 6, 1977 he, being said informant and a second individual that was not aware that above informant was working in conjunction with affiant, had occasion to be at a garage apt. located behind 8027 LaSalle. Affiant was further advised by above informant that he, being said informant, observed above second individual go in above described garage apt. and return with a plastic baggie containing a green vegetable like substance which the second individual stated was marijuana and that it was bought from Ronnie Anderson out of the garage apt.
“Affiant further informs the Court that a check with Gulf States Utilities indicated that the residence located at 8027 LaSalle St. had service in the name of James Anderson, that being Ronnie Anderson’s father.
“Affiant further informs the Court that Ronnie Anderson had been arrested by this office for Narcotic violations in the past and that Sgt. Doerner and Humble have both received information from reliable informants that Ronnie Anderson, living in a garage apt. behind his father’s house on 8027 LaSalle, was dealing narcotics.”

A search of the garage apartment produced marijuana, pethidine, and syringes.

The trial judge upheld the defendant’s motion to suppress on the basis that, while the informant’s reliability “is not subject to question, the reliability of the information received by him from another unknown person has not been established, nor has the reliability of that unknown third person been established.”

In State v. Paciera, La., 290 So.2d 681 (1974), we set forth the rules relating to the probable cause necessary for issuance of a warrant. Therein, we stated:

“The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the infor mation reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. See State v. Linkletter, 286 So.2d 321 (La.Sup.Ct.1973).”

Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Magistrates should not be confined to niggardly limitations or by restrictions on their common sense. Their determinations of probable cause should be paid great deference by reviewing courts, and the resolution of doubtful or marginal cases should be largely determined by the preference accorded to warrants. State v. Sierra, La., 338 So.2d 609 (1976); State v. Nix, La., 327 So.2d 301 (1975); State v. Paciera, supra.

The affidavit established the informant’s credibility. The affiant attested that the informant has worked under his direct supervision for the past five months, and that he provided information which has led to the arrest of six persons for narcotics violations and to the seizure of contraband. Recitations in an affidavit that the informant has previously given information leading to arrests supports the informant’s reliability. State v. Ballansaw, La., 350 So.2d 146 (1977); State v. Culotta, La., 343 So.2d 977 (1976); State v. Sierra, supra; State v. Roach, La., 322 So.2d 222 (1975).

Likewise, the affidavit sufficiently demonstrates that the information is reliable. The informant personally observed the second individual enter a garage apartment behind 8027 LaSalle Street and exit with a plastic bag containing a green vegetable substance. The individual declared that he had just purchased marijuana from the defendant. An informant’s direct personal observation is a factor indicating the credibility of the information. State v. Sierra, supra; State v. Roach, supra; State v. Paciera, supra. The remaining information is that given by the second individual. His statement that he bought marijuana from the defendant is an admission against penal interest, and such admissions by an individual to an informant render the information credible. State v. Gilbert, La., 354 So.2d 508 (1978); State v. Turner, La., 337 So.2d 1090 (1976). In addition, a check with the local utilities company showed that the defendant’s father was the owner of 8027 LaSalle Street.

We conclude that the affidavit is sufficient to establish the reliability of both the informant and the information. Hence, the trial judge erred in granting defendant’s motion to suppress.

For the reasons assigned, the motion to suppress is overruled, and the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

There are no underlying circumstances from which a magistrate reasonably' could conclude that the information provided by the “second individual” was reliable. The statement by the “second individual” to the confidential informant that he had purchased marijuana from the defendant in the defendant’s garage apartment does not add to the trustworthiness of his information. There is nothing in the affidavit to indicate that the “second person” was aware of the informant’s law enforcement connections or that any additional penal consequences were incurred by the statement.

I respectfully dissent.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Michael JUENGAIN.
    No. 60767.
    Supreme Court of Louisiana.
    April 11, 1978.
    Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In a June 6, 1976 indictment the grand jury of Orleans Parish charged Michael Ju-negain in two counts with the February 26, 1976 second degree murder of Aldin R. Pierce and his sister Catherine Francois. On February 4, 1977 the count involving Pierce was nolle pressed and the prosecution proceeded for the killing of Catherine Francois.

A plea of not guilty and not guilty by reason of insanity was entered by the defendant and after trial by jury on October 13, 1976 defendant Juengain was found guilty as charged. He was sentenced to serve the balance of his natural life at hard labor.

A contention is made on appeal that the trial judge committed prejudicial error in denying the defense motion for a mistrial because of the prosecutor’s remarks in rebuttal argument. Defense counsel asserts that although no mention was made of the defendant, that portion of the argument objected to was an indirect reference to the failure of defendant to testify on his own behalf, a ground for a mistrial under Article 770(3) of the Code of Criminal Procedure.

Our reading of the transcript of the pertinent part of the prosecutor’s rebuttal argument relied upon by the defense does not lead to the meaning the defense attributes to that argument. Instead, it is fair to say, the prosecutor was trying to point out to the jury that a witness’ prior criminal record should be considered in evaluating the witness’ credibility. And, to emphasize the reliability of the State’s witnesses, he called to the jury’s attention the fact that none of the State’s witnesses had criminal records. In doing so he said, “Now, of course, no one who took the stand today had a criminal record, so that didn’t come out, but I am giving that as an example.”

It would be difficult for the jury to understand from such an argument that the defendant had failed to testify in his own behalf. Accordingly, the defense contention is not well-founded.

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

DIXON, J., dissents.


author: PER CURIAM.

text:
    STATE of Louisiana v. Danny Melvin YOUNG.
    Nos. 60951, 60952.
    Supreme Court of Louisiana.
    April 19, 1978.
    Prentiss B. Cox, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Michael GAYLOR.
    No. 61050.
    Supreme Court of Louisiana.
    April 19, 1978.
    Carl F. Walker, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Charles D. Jones, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Jerry JACKSON.
    No. 61062.
    Supreme Court of Louisiana.
    April 19, 1978.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Gary C. HEATLEY.
    No. 61069.
    Supreme Court of Louisiana.
    April 19, 1978.
    Alton T. Moran, Director, Allen J. Ber-geron, Jr., Appellate Counsel, John R. Sheppard, E. Michael Harrison, John B. Cornish, Trial Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Anthony HOWARD.
    No. 61091.
    Supreme Court of Louisiana.
    April 19, 1978.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Wayne BALLOM.
    No. 61092.
    Supreme Court of Louisiana.
    April 19, 1978.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Alfred DIXON.
    No. 61099.
    Supreme Court of Louisiana.
    April 19, 1978.
    Barry Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Calvin SHIELDS.
    No. 61112.
    Supreme Court of Louisiana.
    April 19, 1978.
    Rehearing Denied June 15, 1978.
    Roy L. Wood, William L. Brooks, Amite, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DENNIS, J., concurs noting possible double jeopardy error not presented in this proceeding.


text:
    STATE of Louisiana v. William GLOVER.
    No. 61115.
    Supreme Court of Louisiana.
    April 19, 1978.
    Meyer Sabludowsky, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John JOHNSON.
    No. 61117.
    Supreme Court of Louisiana.
    April 19, 1978.
    William J. O’Hara, III, Supervising Atty., New Orleans, Deidre Lloyd, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Henry P. Julien, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Rodney BLACKWELL and Catherine Dodds.
    Nos. 61119, 61119-A.
    Supreme Court of Louisiana.
    April 19, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Board, 24th Judicial District, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, New Orleans, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eddie RICHARDS.
    No. 61146.
    Supreme Court of Louisiana.
    April 19, 1978.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, CALOGERO and DENNIS, JJ, dissent.

State v. Jackson, 307 So.2d 604, 605 (La.1975) should be overruled and is here extended beyond its own holding.


text:
    STATE of Louisiana v. Ronald L. MITCHELL.
    No. 61147.
    Supreme Court of Louisiana.
    April 19, 1978.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Avis DANIELS.
    No. 61148.
    Supreme Court of Louisiana.
    April 19, 1978.
    Brian M. Begue, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Patrick FOGARTY.
    No. 61149.
    Supreme Court of Louisiana.
    April 19, 1978.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.-
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Noel MURPHY.
    No. 61158.
    Supreme Court of Louisiana.
    April 19, 1978.
    Barry F. Yiosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Gerald J. THIBODEAUX.
    No. 61222.
    Supreme Court of Louisiana.
    April 19, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Twenty-Fourth Judicial Dist., Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Alfred ALEXANDER.
    No. 61257.
    Supreme Court of Louisiana.
    April 19, 1978.
    William J. O’Hara, III, Supervising Atty., New Orleans, David J. Mitchell, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.’
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Edward PARR. STATE of Louisiana ex rel. Edward E. PARR v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    Nos. 61258 and 61098.
    Supreme Court of Louisiana.
    April 19, 1978.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant in No. 61258.
    Edward Parr, defendant-relator in No. 61098 in pro. per.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry P. Julien, Jr., Asst. Dist. Atty., for plaintiff-appellee in No. 61258 and for plaintiff-respondent in No. 61098.
   PER CURIAM.

Defendant’s conviction and sentence are affirmed.

Writ denied.


text:
    STATE of Louisiana v. John P. MIRANDA a/k/a John Regan.
    No. 61259.
    Supreme Court of Louisiana.
    April 19, 1978.
    Clifford E. Cardone, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Edward RHODES.
    No. 61297.
    Supreme Court of Louisiana.
    April 19, 1978.
    Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lawrence Wade JONES.
    No. 61299.
    Supreme Court of Louisiana.
    April 19, 1978.
    Peter W. Arbour, Cordell H. Haymon, Ltd., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    Jessie GUITREAU et ux. v. John L. KINCHEN et al.
    No. 61463.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Jessie Guitreau, et ux. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 11,646. Parish of Tangipahoa. 356 So.2d 493.

Writ granted. Appeal reinstated.


text:
    Jonathan C. HARRIS and all other residents and taxpayers of the State of Louisiana v. The TRUSTEES OF the LOUISIANA PUBLIC FACILITIES AUTHORITY, Public Facilities Corporation, et al.
    No. 61672.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Jonathan C. Harris applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 356 So.2d 1039.

Writ denied.


text:
    VERMILION CORPORATION v. Norman VAUGHN.
    No. 61736.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Norman Vaughn, Freddie Brous-sard and Larry J. Broussard applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 356 So.2d 551.

Writ denied.

DIXON, CALOGERO, JJ., vote to grant the writ.


text:
    DiVINCENTI BROTHERS, INC. v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 61827.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Livingston Parish School Board, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston. 355 So.2d 1.

Denied.


text:
    LOUISIANA RESOURCES COMPANY v. Matilda Gray STREAM.
    No. 61205.
    Supreme Court of Louisiana.
    April 11, 1978.
   PER CURIAM.

Under the facts as were fully developed at the argument of this case, we find that the writ of certiorari, or review, was improvidently granted.

Without approving the court of appeal’s interpretation of “necessary purpose,” we recall the writ.


text:
    STATE of Louisiana v. William M. DUKE, Jr.
    No. 61960.
    Supreme Court of Louisiana.
    April 11, 1978.
   In re: William M. Duke, Jr., applying for supervisory writs. Parish of East Baton Rouge.

Writ denied.


text:
    Karen Lynne JOHNSON v. CHEM SPRAY, INC., et al.
    No. 61965.
    Supreme Court of Louisiana.
    April 11, 1978.
   In re: Chem Spray, Inc. and The Travelers Insurance Co., applying for remedial writs. Parish of Orleans, Civil District Court.

Writ denied. On showing made, no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana v. Joe A. TERRELL.
    No. 62008.
    Supreme Court of Louisiana.
    April 13, 1978.
   In re: Joe A. Terrell applying for writs of review, certiorari and mandamus. Parish of East Baton Rouge.

Writ denied.

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


text:
    STATE of Louisiana v. Gerald MANNING.
    No. 62010.
    Supreme Court of Louisiana.
    April 14, 1978.
   In re: Gerald Manning applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Ouachita.

Writ denied (on the showing made).


text:
    Jessie PAUL v. John L. ROBICHEAUX et al.
    No. 62037.
    Supreme Court of Louisiana.
    April 17, 1978.
   In re: Jessie Paul applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary.

Writ refused.


text:
    Louis CHARBONNET, III v. Henry E. BRADEN, IV.
    No. 62029.
    Supreme Court of Louisiana.
    April 17, 1978.
   In re: Louis Charbonnet, III, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Donald J. EDWARDS, Michael A. Shepherd, John N. Kent.
    No. 61987.
    Supreme Court of Louisiana.
    April 18, 1978.
   In re: State of Louisiana applying for supervisory writs. Parish of East Baton Rouge.

Denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    Carlton L. STATON v. Russell D. HUTCHINSON.
    No. 62053.
    Supreme Court of Louisiana.
    April 19, 1978.
   In re: Russell D. Hutchinson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston.

Writ denied: Based upon the two assignments of error, neither of which complain of voiding the election instead of requiring a run-off between the two feuding candidates. See La.R.S. 18:1431, 1432, we find no merit in the application.

SUMMERS, J., would grant this writ.


text:
    STATE of Louisiana v. Joshua M. BURSH, II.
    No. 62100.
    Supreme Court of Louisiana.
    April 24, 1978.
   In re: Joshua M. Bursh, II applying for stay order. Lincoln Parish.

Insufficient showing made to warrant the issuance of the stay order requested.


author: EDWARDS, Judge.

text:
    Frank VUCI and the Manchac Villa, Inc. v. Mrs. George NATHANS.
    No. 11911.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 21, 1978.
    David L. Dawson, Jr., Baton Rouge, for plaintiffs and appellees.
    Victor L. Marcello, Donaldsonville, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suspensive appeal by the defendant, Mrs. George Nathans, from a judgment ordering her to vacate property owned by plaintiffs, Frank Vuci and the Manchac Villa, Inc. Defendant contends that she is occupying the property under an unexpired written lease.

On October 15, 1968, plaintiff, Manchac Villa, Inc., leased a building and property known as the “Italian Villa” located on Airline Highway in Prairieville, Louisiana to defendant’s husband George Nathans. The lease was for a primary term of one year; from October 1, 1968 until September 30, 1969 at $300 per month. The lease also provided two options to renew, as follows:

4.
“Lessor further agrees to grant unto Lessee a four year option at the expiration of this lease on September 30,1969 provided that lessee give lessor at least sixty (60) days written notice before the expiration of this lease of his intention regarding the exercise of this option. Lessor and Lessee further agree that in the event lessee exercise this option that a new agreement will be entered into regarding the monthly rental during this said four (4) year option, that the rental during this (4) year period is to be $500.00 per month.
5.
“Lessor further agrees to grant unto Lessee at the end of the abovementioned (4) year option, an additional option to lease said property for (5) additional years, at the rental of $500.00 per month.”

Although the first option to renew was never exercised, Mr. Nathans continued in possession of the property. Mr. Nathans did not pay rent from June, 1969, through January, 1970. Thereafter, he resumed rent payments, but at the rate of $300 per month. He continued to pay $300 per month as rent through August, 1971, and thereafter paid monthly rent of $400.

Mr. Nathans died on November 30, 1972; Mrs. Nathans continued to occupy the premises. She paid $400 per month rent for the remainder of 1972, and $500 per month thereafter to the time of the hearing in 1977. Defendant never notified plaintiffs that she wished to exercise the options to renew the lease.

On August 30, 1977, defendant was notified to vacate the premises by September 30,1977. Defendant refused to vacate, contending that she was protected by the written lease and that the plaintiffs were es-topped from evicting her.

The trial court found: the lease had not been renewed in accordance with its terms and had expired; the defendant was occupying the property on a month-to-month basis; and there had been no conduct on plaintiffs’ part which would estop them from evicting the defendant.

Defendant contends that the trial court’s findings are manifestly erroneous.

ON MOTION TO DISMISS APPEAL

Plaintiffs filed a motion to dismiss the suspensive appeal alleging that defendant did not comply with LSA-C.C.P. art. 4735, which provides in pertinent part:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises . . ."

The record discloses that defendant filed an original answer pleading a general denial. Subsequently during the summary hearing, defendant filed an amended answer, verified by her under oath, which asserted the affirmative defenses of estop-pel and accord and satisfaction.

There is ordinarily no requirement for an answer to a rule. LSA-C.C.P. art. 2593. In eviction proceedings, however, LSA-C. C.P. art. 4735 mandates a sworn answer asserting an affirmative defense as a prerequisite to a suspensive appeal. Article 4735 contains no provision concerning the time for filing the answer. Therefore, the rules applicable to ordinary proceedings govern. LSA-C.C.P. art. 2596. Under LSA-C.C.P. arts. 1151 and 1154, the filing of an amended answer is within the discretion of the trial court.

Accordingly, the amended answer filed with leave of court during trial and before judgment was timely and satisfied the requirement of LSA-C.C.P. 4735. See Stoltz v. McConnell, 202 So.2d 451 (La.App. 4th Cir. 1967), writ refused 251 La. 231, 203 So.2d 559 (1967).

Plaintiffs cite Keller v. Chauvin, 281 So.2d 181 (La.App. 4th Cir. 1973) in support of their motion.

We find Keller inapposite. In Keller the verified answer was under oath of the defendant’s attorney. Such is not the situation in the instant case. Plaintiffs’ motion is therefore denied.

ON THE MERITS

Defendant contends that the trial court erred in finding that the lease was not renewed and that it had expired. Defendant cites Lingle v. Wainwright, 215 La. 117, 39 So.2d 843 (1949) and Lakeside Dairies, Inc. v. Gregersen, 217 La. 510, 46 So.2d 752 (1950) to support her contention.

In both Lingle and Lakeside, the tenant sent the appropriate written notice exercising the option to renew, but not within the specified time. The Supreme Court held in each case that the lessor, who received a tardy notice exercising the option and allowed the tenant to retain possession of the property and continued to accept rent payments from the tenant, had waived the requirement of a timely written exercise of the option.

In the instant case, there is no evidence that the option was ever exercised. In fact, there is some testimony that Mr. Nathans did not wish to extend the lease and that his continued occupancy was under a new verbal agreement. Under these facts, the logic of Lingle and Lakeside is not applicable.

Consequently, the lease expired at the end of the primary term since Mr. Nathans did not exercise the option to renew. Exchange Oil and Gas Corp. v. Guillot, 251 So.2d 479 (La.App. 1st Cir. 1971). Defendant’s occupancy of the premises after the expiration of the lease was under a recon-duction of the lease on a month-to-month basis. Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970). There is no merit in defendant’s first contention.

Defendant also contends that the trial court committed manifest error in failing to find that plaintiff’s conduct estopped them from cancelling the lease.

The trial judge stated, inter alia, in his Reasons for Judgment:

“ * * * The Court further finds that there has been no conduct on the part of the plaintiff which would es-top them from the contentions herein asserted. Plaintiff’s conduct has been consistent with his assertion that the original lease has expired, and that the defendant was permitted to occupy the premises on a month-to-month basis.
“The letters written to Mr. and Mrs. Nathans in the year 1972, together with plaintiff’s testimony, indicates that plaintiff considered the original lease terminated.”

There is ample evidence in the record to support this finding. Defendant failed to substantiate its defense of estoppel.

For the above reasons, the judgment appealed is affirmed at defendant’s cost.

AFFIRMED.

      . The parties stipulated at trial that Frank Vuci is the present owner of the property.


author: DOMENGEAUX, Judge.

text:
    FORD MOTOR CREDIT COMPANY et al., Plaintiffs-Appellants, v. Jenston SOILEAU, Defendant-Appellee.
    No. 6348.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.

      Guy 0. Mitchell, III, Ville Platte, for plaintiffs-appellants.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

The present appeal is from a judgment dismissing a suit on a promissory note. This case was before us once before on a different issue in Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir. 1975).

The following facts set the background to this appeal. In June of 1973 defendant’s son, Terrell B. Soileau, purchased a 1973 Ford automobile from Elin Pitre, d/b/a Pi-tre Ford Company, in Evangeline Parish. A promissory note, used to finance part of the purchase price, was signed by the father, Jenston Soileau, and his son.

The note was made payable to bearer and was secured by a chattel mortgage on the automobile. Pitre Ford sold the note to the Ford Motor Credit Company.

The younger Soileau defaulted in payments on the note and Ford Motor Credit Company instituted executory proceedings to have the car seized and sold. After the sale Ford Motor Credit filed these proceedings against the father, as co-maker of the note, for a deficiency judgment. The father raised the exception of no cause of action contending that he could not be sued because he was not made a party in the prior executory proceedings. This was granted by the trial court, and Ford Motor Credit appealed. This court reversed the judgment and remanded the case back to the trial court. Ford Motor Credit Company v. Soileau, supra.

After remand, but before trial, Pitre Ford Company paid the amount outstanding on the note to Ford Motor Credit, pursuant to a repurchase agreement whereby Pitre Ford would be required to buy back notes it sold to Ford Motor Credit if there was a default in payments. This transaction was revealed at trial. Defendant’s counsel, with the Court’s permission, immediately amended his answer in order to specially plead the defense of payment. Plaintiff’s counsel, also with the Court’s permission, amended his petition to join Elin Pitre, d/b/a Pitre Ford Company, as an additional plaintiff.

After the amendments defendant raised the exceptions of no cause and no right of action to plaintiff’s supplemental petition. He also entered a plea of estoppel. The trial judge rejected the plea of estoppel, but granted the exceptions of no right and no cause of action and dismissed the suit. It is from this judgment that plaintiffs have perfected a devolutive appeal.

The sole issue raised on appeal is whether the amended petition states a cause of action and whether Pitre, d/b/a Pitre Ford Company, is a proper party to sue and, therefore, has a right of action.

We have reviewed the record and find that the trial court erred in not overruling the exceptions.

The law in this area is clear. The purpose of the exception of no cause of action is to test the legal sufficiency of the pleadings. Well pleaded facts alleged in the petition are taken as true. If any reasonable construction of the alleged facts could lead to possible legal recovery, the exception must be overruled. Normally, evidence may not be considered for the purposes of sustaining an exception of no cause of action. The exception can be sustained only when the allegations, as stated in the petition, affirmatively establish that no relief can be granted under the law. E. g., Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Landry v. Guillory, 344 So.2d 1138 (La.App. 3rd Cir. 1977); Wahlder v. Roy O. Martin Lumber Company, Inc., 337 So.2d 669 (La.App. 3rd Cir. 1976); Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975); Succession of Lambright v. Lambright, 252 So.2d 349 (La.App. 3rd Cir. 1971), appeal after remand, 264 So.2d 796 (La.App. 3rd Cir. 1972); Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967).

The purpose of the exception of no right of action is to determine if the suit is being filed by one with a legal interest in the litigation, assuming that a valid cause of action is pleaded in the petition. It is a threshold device used to terminate suit brought by a plaintiff who has no legal interest to do so. Evidence is admissable on the in limine trial of this exception for the purpose of determining the validity of the objection pleaded by it; however, the exception is not to be used to urge a defense to the effect that a plaintiff is without "interest simply because a defendant has a defense to plaintiffs action. E. g., Babineaux v. Pernie-Bailey Drilling Company, 261 La. 1080, 262 So.2d 328 (1972); Guillory v. Nicklos Oil & Gas Company, supra; All State Credit Plan Houma, Inc. v. Weidenbacher, 234 So.2d 774 (La.App. 1st Cir. 1970), application denied 256 La. 378, 236 So.2d 504 (1970), appeal after remand, 290 So.2d 695 (La.App. 1st Cir. 1974), writ denied 293 So.2d 193 (La.1974); Bielkiewicz v. Rudisill, supra.

The original petition in this case alleged that Ford Motor Credit was the holder of a promissory note drawn by defendant which had remained unpaid to the extent of $2,374.40. There is no question that this petition set forth a cause of action and that Ford Motor Credit had a legal interest to sue. This was our holding in the prior appeal.

The amending and supplemental petition made the following allegations and prayer for relief:

“1.
In the above entitled matter, Elin Pi-tre, d/b/a Pitre Ford Company, assigned the note in controversy to Ford Motor Credit with the following stipulation:
‘ASSIGNMENT
‘The Seller [Pitre] named on the face of this contract sells, assigns, and transfers to Ford Motor Credit Company (hereinafter called ‘FMCC’) his, its, or their entire right, title and interest in and to the within contract and the Property described therein and authorizes FMCC to do every act and thing necessary to collect and discharge obligations arising out of or incident to said contract and assignment. In order to induce FMCC to accept assignment of the contract, the Seller warrants that: the contract, and guaranty if any, are genuine, legally valid and enforceable and arose from the sale of said Property; said Property is as represented to the Buyer named therein who was quoted both a time price and a lesser cash price; the within contract was complete in all respects and Seller made all disclosures required by law prior to the execution thereof by Buyer; the Buyer is not a minor, has capacity to contract and paid the down payment stated in the contract with his own funds; all statements made by or on behalf of the Buyer and furnished to FMCC by the Seller are true to the best of the Seller’s knowledge and belief, and the Seller has no knowledge of any fact that would impair the validity or value of the contract; title to said Property is vested in the Seller free of all liens and encumbrances and the Seller has the right to assign said title; and a certificate of title to said Property showing a lien or encumbrance for the benefit of FMCC or the Seller has been or will be applied for forthwith if permitted by law.
‘If there is any breach of any of the foregoing warranties, without regard to the Seller’s knowledge or lack of knowledge with respect thereto or FMCC's reliance thereon, the Seller hereby agrees unconditionally to purchase said contract from FMCC, upon demand, for the full amount then unpaid whether said contract shall then be, or not be, in default. Seller further agrees that in event Buyer or any other person makes a claim against FMCC alleging facts which, if true, would constitute a breach of any of the foregoing warranties, Seller shall assume the defense of such claim and shall indemnify and save FMCC harmless from all loss, cost and expenses arising therefrom. In addition, this assignment includes the provisions of the paragraph initialed by the Seller below, provided that if none of the paragraphs below has been initialed by Seller, this assignment shall include the provisions of, the paragraph below and entitled “Repurchase”’. The liability of the Seller shall not be affected by any extension, renewal or other change in the time of payment of the said contract, or any change in the manner, place or terms of payment thereof, or the release, settlement or compromise of or with any party liable for payment thereof or the release or non-perfection of any security thereunder. FMCC shall not be bound to exhaust its recourse against the Buyer or any other person or any security FMCC may at any time have before being entitled to payment from the Seller hereunder. The Seller waives notice of the acceptance of this assignment and notices of non-payment and non-performance of the contract and any other notices required by law and waives all setoffs and counterclaims. This assignment shall become effective upon delivery of the within contract to FMCC or upon FMCG’s payment of the purchase price therefor whichever first occurs.
******
‘[] “REPURCHASE” The Seller guaranties payment of the full amount remaining unpaid under said contract, and covenants if default be made in payment of any installment thereunder to pay the full amount then unpaid to FMCC upon demand, except as otherwise provided by the terms of the Ford Motor Credit Company Retail Plan in effect at the time this assignment is accepted. (Initialed within the box as indicated on the form.)
* * *>
2.
Suit was originally filed herein by Ford Motor Credit Company, which at the time suit was filed, had not received any payment on the note after default by makers, Jenston Soileau and Terrell Soileau.
3.
Subsequent to the filing of the suit, but before the trial on the merits, which was held pursuant to a remand by the Court of Appeals, on April 19,1976, Ford Motor Credit Company was paid pursuant to the terms of the endorsement and to the finance plan existing between Elin Pitre, d/b/a Pitre Ford Company and Ford Motor Credit Company. Therefore, it appears that Elin Pitre, d/b/a Pitre Ford Company has succeeded to some or all of the causes and rights of action of Ford Motor Credit Company in the above entitled matter to the collection of the note sued upon therein.
4.
Therefore, Ford Motor Credit Company, wishes to add Elin Pitre, d/b/a Pitre Ford Company and the said Elin Pitre, d/b/a Pitre Ford Company wishes to be added as a plaintiff herein insofar as its rights have succeeded those of Ford Motor Credit Company.
WHEREFORE, PETITIONER PRAYS that after due proceedings had, there be judgment (a) in favor of Ford Motor Credit Company and against defendant, Jenston Soileau, as prayed for in the original petition, or in the alternative, (b) judgment jointly in favor of petitioners Ford Motor Credit Company and Elin Pi-tre, d/b/a Pitre Ford Company against defendant, Jenston Soileau as prayed for in the original petition, or (c) in the second alternative, in favor of Elin Pitre, d/b/a Pitre Ford Company against defendant, Jenston Soileau, as prayed for in the original petition.
* * * [Italics by the Court]”

Looking to the original and supplemental petitions filed in this case, it is clear that Elin Pitre is seeking payment as a transferee on an overdue promissory note from one of the note’s co-makers. We feel that a cause of action has been stated and that Pitre is a proper party to enforce collection of the unpaid balance of the note. It is elementary commercial law that a note can be transferred from a holder to a transferee and that the transferee has at least the same rights as the transferor. La.R.S. 7:49 (Section 49 of the Negotiable Instruments Law), replaced by La.R.S. 10:3-201 (Section 3-201 of the Uniform Commercial Code). See Liberty Loan Corporation of Eunice, Inc. v. Lavine, 324 So.2d 481 (La.App. 3rd Cir. 1975); Preferred Investment Corporation v. Denson, 251 So.2d 455 (La.App. 1st Cir. 1971). The trial court was therefore in error by granting defendant’s exceptions and dismissing plaintiffs’ suit.

For the above reasons the judgment appealed is reversed and set aside. Judgment is hereby rendered overruling defendant’s exceptions of no right and no cause of action. The case is remanded to the trial court for further proceedings in accordance with law and consistent with the views expressed herein. Costs of this appeal are to be paid by defendant-appellee. Assessment of costs in the district court is to await final judgment.

REVERSED AND REMANDED.

      . Plaintiff actually submitted two amending and supplemental petitions. The first amending petition (not found in the record) was filed by Pitre Ford Company. Defendant’s counsel contended, inter alia, that Ford Motor Credit Company was the only party who could amend and supplement its petition. The trial court rejected this petition. A second amending petition, filed by the original plaintiff, Ford Motor Credit, cured the defect. This petition was accepted by the trial court.

      . There are limited exceptions, as for example, when documents are attached to the petition or when the exception is filed after evidence has been taken and the allegations of the petition have been enlarged by such evidence. See Succession of Lambright v. Lambright, 252 So.2d 349 (La.App. 3rd Cir. 1971), appeal after remand, 264 So.2d 796 (La.App. 3rd Cir. 1972).


author: BEER, Judge.

text:
    Roger J. GANDOLFO, Jr. v. DEPARTMENT OF POLICE.
    No. 8904.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      Philip S. Brooks, City Atty., Michael A. Starks, Asst. City Atty., for defendant-appellant.
    Sanford Krasnoff, New Orleans, for plaintiff-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   BEER, Judge.

Roger J. Gandolfo, Jr., Desk Sergeant, New Orleans Police Department, was charged with violation of Articles 53(a) and (b), 64, 65, 68(b), 70 and 83 of the Rules for the Administration of the Department of Police. Gandolfo admitted participation in unauthorized card games while on duty but took issue with other alleged acts of misconduct. By letter of May 10,1976, the Acting Superintendent of Police advised Gandolfo that he had been suspended without pay for thirty days, and demoted to the rank of Police Officer, in accordance with Rule IX, Sec. 1, paragraph 1.1, of Rules of the Civil Service Commission for the City of New Orleans.

Gandolfo appealed to the City Civil Service Commission under the authority of La. Const. art. 10, § 8(A), and Rule II, sec. 4, of the Rules of the City Civil Service Commission. After proceedings before a Hearing Examiner, the Commission affirmed Gan-dolfo’s suspension but reversed the demotion, ordering that Gandolfo be restored to the rank of Desk Sergeant and further ordered that the difference in pay between that of Desk Sergeant and that which he earned as a Police Officer from date of demotion be restored to him.

The Department, appellant here, seeks to have the demotion reinstated. It contends that there is clear, sufficient and unrefuted evidentiary support for all of the allegations of misconduct and, thus, for the imposition of both the suspension and the demotion.

The charges against Gandolfo arose from an investigation into alleged police misconduct which indicated that Gandolfo and others had participated in bouree games at the Third District Station while on duty, contrary to Department regulations. Gandolfo was charged with participation in the games, and failure to bring the matter to the attention of the Department, both of which he admitted. His suspension and demotion were based not only on these charges, but on the following additional charges, which were not admitted:

1. That he had been aware of and acquiesced in subordinates’ neglecting their patrol duties and entering false information on their activity sheets in order to account for time spent in unauthorized card games,
2. That he falsely accounted for his own time, and
3. That he failed to properly supervise subordinates.

With regard to these charges, Gandolfo acknowledged that he was superior in rank to the patrolmen assigned to the station, but denied responsibility for the maintaining of discipline since he, as Desk Sergeant, was not assigned to a specific platoon made up of subordinate police officers. This was contradicted by Assistant Superintendent Duke, who stated that Gandolfo was entirely responsible for the conduct of all of the members of the Department who were in the station at that time . . . ”

The decision of the Commission observed, in pertinent part:

“Had the Appointing Authority carried the burden of proof required of it and produced probative evidence of all the allegations contained in its disciplinary letter dated May 10,1976, dismissal of the appellant from the classified service would have been the proper action. However, the Appointing Authority produced no evidence to support the bulk of the reasons on which it based its disciplinary action. That the appellant engaged in card games for money while on duty and made no effort to bring such improper activities within his personal knowledge to the proper authority were matters supported by the evidence. Although an investigation had been conducted by the Appointing Authority, none of the investigative officers were called as witnesses. The only witness for the Appointing Authority, the Acting Superintendent of Police, lacked personal knowledge of the events except as contained in the investigative report on which he had based the disciplinary ac-. tion. No one was called by the Appointing Authority to corroborate what was in the report. Under these circumstances, the Appointing Authority’s action cannot stand.” (Emphasis ours.)

Finding only that Gandolfo had “engaged in card games for money while on duty and made no effort to bring such improper activities within his personal knowledge to the proper authority were matters supported by the evidence,” the Commission modified the Department’s disciplinary action. Note, e. g., Pendley v. Louisiana Division of Administration, 303 So.2d 544 (La. App. 1st Cir. 1974), and cases cited therein.

The scope of our review is limited. See Hebbler v. Department of Fire, 279 So.2d 224 (La.App. 4th Cir. 1973), affirmed in part, reversed in part on other grounds, 310 So.2d 113 (La.1975); Blake v. Giarrusso, 263 So.2d 392 (La.App. 4th Cir. 1972), writ ref., 262 La. 1154, 266 So,2d 442; Waldroup v. Louisiana State University, 255 So.2d 413 (La.App. 1st Cir. 1971); Burton v. Department of Highways, 135 So.2d 588 (La.App. 1st Cir. 1961), cert. denied.

Accordingly, our inquiry can go no further than to determine if, as a matter of law, the record, including Gandolfo’s admissions, noted above, required a finding:

1.That he had been aware of and acquiesced in subordinates’ neglecting their patrol duties and entering false information on their activity sheets in order to account for time spent in unauthorized card games,
2. That he falsely accounted for his own time, and
3. That he failed to properly supervise subordinates.

In making this determination, we take note of the uncontested and unrefuted fact that Gandolfo was, at all times pertinent, a Desk Sergeant, serving on active police duty.

Thus, as we perceive the scope of our inquiry, we must determine if, as a matter of law, a Desk Sergeant, who is, acknowl-edgedly, not a line officer in the strict sense of the word, nevertheless carries the responsibilities of rank which are requisite to a finding that numbers one and three of the contested charges should not have been dismissed. We must, also, address a similar consideration of charge number two, limited to whether or not the record, including the admissions of Gandolfo, require an affirmative finding.

In our view, it is inherent in Gan-dolfo’s admission that he has falsely accounted for his own time by the very act of continuing to draw his full pay and allowances, etc., notwithstanding his admitted participation, while on duty, in the card playing activities noted above. Also implicit from the record itself is the finding, as a matter of law, that Gandolfo was aware of and acquiesced in the actions of his subordinates and failed to properly supervise them. We believe that a Desk Sergeant is no less charged with overall disciplinary supervision than a Lieutenant, Captain or Major, who is fulfilling a staff rather than a line function. To contend otherwise demeans and detracts from the important rank of Desk Sergeant. Though his function is more administrative than his brother sergeants of the line, he is, above all else, a sergeant. Though his duties may not include specific command functions vis-a-vis the patrolmen who make up the watch or the platoon on duty, his position is one which constitutes “rank” in the jargon of the police department.

Thus, the record — as a matter of law— supports a finding with respect to all of the charges levelled at Gandolfo when considered with his admission. The Commission erred, as a matter of law, in reducing the imposition of such sanctions as were justifiably imposed by the Department, and we must reverse their decision and reinstate the sanctions imposed by the Assistant Superintendent of Police both with respect to the suspension and demotion.

REVERSED.