author: CALOGERO, Justice. MARCUS, Justice DIXON, Justice

text:
    Bruce MEADOR and Gretchen Meador v. TOYOTA OF JEFFERSON, INC., et al.
    No. 57218.
    Supreme Court of Louisiana.
    May 17, 1976.
    Marvin C. Grodsky, New Orleans, for plaintiff s-applicants.
    Fernand F. Willoz, III, New Orleans, for defendants-respondents.
   CALOGERO, Justice.

May an automobile owner recover damages for aggravation, distress, and inconvenience from a repairman who has unnecessarily and excessively delayed completion of the vehicle’s repair? This is the principal question presented in this case. It is to be answered by the construction to be given that portion of Civil Code article 1934(3) which allows the recovery of non-pecuniary loss “[w]here the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification . . . .”

Following a collision, an eighteen-year-old girl brought her first acquired automobile, a 1971 model Toyota, to defendant, Toyota of Jefferson, Inc., for repair late in February of 1972. It was returned to her on September 20, 1972, some seven months later. In her suit for damages (she was joined in the suit by her father), the trial court awarded her $1554.77, which included $602.77 as reimbursement for seven of her monthly car notes, $252 for seven monthly insurance payments, and $700 for aggravation, distress, and inconvenience. The Court of Appeal agreed that defendant had breached its contract, but concluded that the undue delay consisted of only five of the seven months’ repair period. Accordingly, it reduced the $602.77 and the $252 portions of the award by two-sevenths, allowing, respectively, $430.55 and $180, for a total of $610.55. The Court of Appeal disallowed the $700 awarded by the trial court for aggravation, distress, and inconvenience, and in these particulars amended the judgment in favor of plaintiffs. Meador v. Toyota of Jefferson, Inc., 322 So.2d 802 (La.App. 4th Cir. 1975).

We granted writs upon plaintiff’s complaint that the Court of Appeal erred in disallowing the $700 portion of the award for aggravation, distress and inconvenience. Meador v. Toyota of Jefferson, Inc., 323 So.2d 804 (La.1976). Defendant did not seek writs. Accordingly, and because of the result we reach hereinafter on the only remaining issue in the litigation, the part of the Court of Appeal judgment awarding plaintiff $610.55 is not before us. C.C.P. art. 2167; Madison v. American Sugar Refining Co., 243 La. 408, 144 So.2d 377 (1962); Blades v. Southern Farm Bureau Casualty Ins. Co., 237 La. 1, 110 So.2d 116 (1959); May Finance Co. v. Nagy, 223 La. 816, 66 So.2d 860 (1953).

We have reviewed the transcript and agree with the factual findings of the Court of Appeal. Defendant did indeed breach the implied obligation to repair within a reasonable time; the undue delay amounted to five months; $610.55 is a fair assessment of plaintiff’s recoverable pecuniary loss. (As noted earlier, this element is no longer before us). Furthermore, if recoverable, $700 would be a reasonable and proper award for plaintiff’s nonpecu-niary damages, i. e., her aggravation, distress, and inconvenience. Accordingly, we direct our attention to the principal question posed at the outset of this opinion.

Generally, recovery for damages upon the breach of a contract is limited to the loss a person has sustained or the profit of which he has been deprived. However, in certain limited circumstances a person may, upon the breach of a contract, recover damages for nonpecuniary loss. It is this sort of damage which plaintiff herein seeks to recover. Plaintiff argues that she is due recovery for aggravation, distress, and inconvenience which resulted from her inability to use her automobile for the period during which defendant unreasonably delayed its repair. She argues that this damage is recoverable under Civil Code Article 1934(3) which, as we indicated earlier, allows recovery for nonpecuniary loss “[w]here the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification . . . She argues specifically that the disjunctive “or” in the article means that nonpecuniary damages are allowed where the contract has for its object the gratification either of “some intellectual enjoyment” or of “some convenience.” Thus she contends that to gain recovery under the article, one need not show that the contract contained any intellectual element whatsoever; one may recover even when the object of the contract is purely physical gratification. This liberal position is supported by language, at least, in the First Circuit Court of Appeal opinion in Jack v. Henry, 128 So.2d 62 (La.App. 1st Cir. 1961). An alternative, broader position which also supports plaintiff’s recovery is that it suffices, to permit nonpecu-niary damages, that the object or objects of the contract include elements of both intellectual and physical gratification. See Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir. 1961), Meyer v. Succession of McClellan, 30 So.2d 788 (La.App.Orl.1947), Melson v. Woodruff, 23 So.2d 364 (La.App. 1st Cir. 1945).

On the other hand, defendant contends that in order for plaintiff to recover non-pecuniary damages, the object of the contract must be exclusively intellectual enjoyment, as opposed to partially intellectual— partially physical, and as opposed to exclusively physical enjoyment. This strict interpretation is given support in the jurisprudence by such cases as Rigaud v. Orkin Exterminating Co., 236 So.2d 916 (La.App. 3d Cir. 1970), Baker v. Stamps, 82 So.2d 858 (La.App.Orl.1955), Lillis v. Anderson, 21 So.2d 389 (La.App.Orl.1945), and Sahuc v. United States Fidelity & Guar. Co., 320 F.2d 18 (5th Cir. 1963).

This Court has never adopted a strict view but has reached results favoring the broader interpretation of Art. 1934(3). In Lewis v. Holmes, 109 La. 1030, 34 So. 66 (1903) a bride had contracted with the defendant store for the manufacture, or sewing, of five dresses, one for her wedding and the others for her trousseau. She was allowed recovery for deprivation of intellectual enjoyment and for mental suffering in connection with defendant’s non-delivery of the four dresses for her trousseau. The contract’s object was not purely intellectual, but rather entailed features both physical (her need for comfortable clothing), and intellectual (her preference for style, or “taste,” and concern with her appearance on her wedding day and on her honeymoon).

Two other cases where the Court allowed recovery and where there existed el-ments of both intellectual and physical gratification were O’Meallie v, Moreau, 116 La. 1020, 41 So. 243 (1906) and Mes v. Venus Community Center Benevolent Mutual Aid Assn., 191 La. 803, 186 So. 342 (1939). In O’Meallie, the Court awarded damages for annoyance and vexation to a social club for breach of a contract to lease a picnic area, and in Hies the Court awarded plaintiff damages for mental anguish from watching her child die without proper medical attention because of defendant Association’s breach of a contract to supply doctors’ services and medicine.

In none of the foregoing cases, however, has the Court historically viewed the source of Article 1934(3) and the origin thereof.

The third paragraph of Article 1934 had no counterpart in the Code Napoleon or the Louisiana Civil Code of 1808. The paragraph first appeared in the Louisiana Civil Code of 1825. That Code was drafted in French, translated into English. Both French and English versions are official texts of the Code. To interpret the Article, then, where as here the articles of the 1870 Code is not entirely clear, we deem it helpful to examine the French and English versions of the article in the Code of 1825.

In the French version of the 1825 Louisiana Civil Code, the pertinent clause of Art. 1928 read:

“Lorsque le contract a pour but de procurer a quelqu’un une jouissance purement intellectuelle, telle que celles qui tiennent a la religion, a la morale, au-gout, a la commodite ou a toute autre es-pece de satisfaction de ce genre, ....”

Translated into English this passage reads:

“When the contract has for its object to confer to someone a purely intellectual enjoyment, such as those pertaining to religion, morality, taste, convenience or other gratifications of this sort, ....”

The foregoing French article was mistranslated to read in the English version of Article 1928 of the Louisiana Civil Code of 1825, as follows:

“Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, . . . . ”

The English passage was copied verbatim into the Code of 1870. Thus we conclude that the clause should, as it may, logically, be read as follows: Where the contract has for its object the gratification of intellectual enjoyment, such as that pertaining to religion, or morality, or taste, or convenience, ....

It is evident that the proper interpretation of Article 1934(3), is not, as plaintiff contends, that nonpecuniary damages are allowable where the object is exclusively physical gratification. On the contrary, “convenience” in the source provision was not a contract object triggering the availability of nonpecuniary damages, but was, rather, along with religion, morality, and taste, one example of “purely intellectual enjoyment,” the intellectual enjoyment being necessary as a contract’s object before nonpecuniary damages became available.

We find the French source provision of 1934(3) in the 1825 Louisiana Civil Code, if not controlling, at least persuasive in our present interpretation of the article’s ambiguous counterpart in our 1870 Civil Code. While the foregoing interpretation does not allow nonpecuniary damages where the sole object is physical gratification, a proper interpretation of the entirety of Article 1934(3) does not in our view bar such damages in all instances where there exists as an object physical gratification. We believe that a contract can have “for its object” intellectual enjoyment, assuming that intellectual enjoyment is a principal object of the contract, notwithstanding that a peripheral, or incidental, or even perhaps concurrent object of the contract may be physical gratification.

Thus, we would interpret Article 1934(3) as follows: Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as a consequence of nonfulfillment of that object are not recoverable.

On the other hand, where a principal or exclusive object of a contract is intellectual enjoyment, nonpecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable. Damages in this event are recoverable for the loss of such intellectual enjoyment as well as for mental distress, aggravation, and inconvenience resulting from such loss, or denial of intellectual enjoyment.

The foregoing principles are not at variance with the results obtained in the cases of Lewis v. Holmes, supra, O’Meallie v. Moreau, supra, and Jiles v. Venus Community Center Benevolent Mutual Aid Assn., supra.

Applying these principles to the case at hand, we conclude that plaintiff is not entitled to recover damages for aggravation, distress, and inconvenience caused by the five month loss of use of her automobile, because the procuring of intellectual enjoyment, while perhaps an incidental or inferred contemplation of the contracting parties, was not a principal object of the contract to have the car repaired. The principal object of the contract, the overriding concern of plaintiff, evident to defendant at the time the contract was entered into, was the repair of plaintiff’s automobile with its consequent utility or physical gratification.

As noted, we clearly do not hold that the object of a contract must be exclusively intellectual enjoyment in order to trigger article 1934(3)’s nonpecuniary damages. We do hold, however, that such intellectual enjoyment must be a principal object of the contract, and that nonpecuniary damages, when allowed, are limited to those which compensate for, or are directly related to, nonfulfillment of the intellectual object.

We also deem it worth noting, however fundamental, that unlike the rule which we are required by the Civil Code to apply in this action for breach of contract, damages for mental anguish, aggravation, distress and inconvenience, are recoverable in an action sounding in tort. La.Civil Code art. 2315; 2 M. Planiol, Traite ele-mentare de droit civil, no. 252 at 152 (11th ed., La.State L.Inst.tranl.1959); 48 Tul.L.Rev., supra at 1171.

Perhaps it would be better if damages for mental anguish in breach of contract cases were allowable just as in tort actions. However, such a matter directs itself to the law maker. Our responsibility is to interpret and apply the law, not to enact it.

For the foregoing reasons, the judgment of the Court of Appeal is affirmed. All costs of this appeal are chargeable to the plaintiff.

MARCUS, J., assigns additional concurring reasons.

DIXON, J., dissents with reasons.

MARCUS, Justice

(assigning additional concurring reasons).

While I join in the majority opinion, in my view, damages are not awardable for annoyance and emotional distress in breach of contract cases unless the gratification of purely intellectual enjoyment is the principal object of the contract. Where only an incidental or concurrent object of the contract is the gratification of purely intellectual enjoyment, damages for annoyance and emotional distress are not recoverable.

DIXON, Justice

(dissenting).

I respectfully dissent. We should not deny recovery for damages which are suffered, for which justice requires compensation, for the rather superficial reason that plaintiff’s action is in contract, not tort. Nevertheless, even considering this a contract action, these damages are recoverable under the plain terms of C.C. 1934(1).

When plaintiff brought her vehicle to defendant for repairs, she had the right to expect that the repairs be completed within a reasonable time. They were not. As a result, not only did she suffer pecuniary loss, but also the aggravation of not having her car, the distress of not knowing when she would get it back, and finally the inconvenience of having to find other methods of getting around. In a society as dependent on the automobile as ours, where a car is not only a convenience but often a necessity, a plaintiff should be able to recover damages representing the aggravation, distress and inconvenience suffered when the repairman breaches his duty to fix the car within a reasonable time. Such damages are reasonably within the contemplation of the parties at the time the contract was entered into, and are therefore compensable. C.C. 1934(1).

This court has consistently awarded damages for mental anguish and inconvenience in tort suits where property damage is sustained. In Dodd v. Glen Rose Gasoline Co., 194 La. 1, 193 So. 349 (1939), in which defendant’s plant operated in a manner that prevented plaintiff from getting a good night’s sleep, this court awarded damages for inconvenience and discomfort. In McGee v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21 (1944), this court awarded damages for mental anguish, worry and inconvenience caused by the depositing of soot, smoke and cinders into plaintiffs’ houses by defendant’s roundhouse operation. In Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955), we awarded damages for inconvenience and mental anguish suffered by plaintiff as a result of defendant’s blasting operations.

There is no logical reason to allow recovery of such damages when property is involved in cases delineated as “tort,” and yet deny recovery of similar damages when property is involved (as in this case), simply because the cause of action is delineated as “contract.” Both involve a duty and a breach. Louisiana employs fact pleading. A plaintiff need only state facts, which, if true, authorize recovery. Cox v. W. M. Heroman & Co., 298 So.2d 848 (La.1974). In the instant case, plaintiff has proved, to the satisfaction of the trier of fact, that she suffered inconvenience, distress and aggravation because of defendant’s breach of duty. She should recover therefor. As Planiol states:

“. . . The big objection is that mental suffering can not be compensated with money. But that is done every day in the case of torts; why act differently in contract cases? There is no reason for not doing so, and as M. Boistel has well said, just because one can not do so better, is no reason for doing nothing at all.”

      . L.C.C. art. 1934(3) provides:
      “Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are eases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.”
      * * % * *

      . Originally sued by plaintiffs were Toyota of Jefferson, Inc., Toyota Motor Sales, U. S. A. Inc., Gulf States Toyota, Inc., and State Farm Mutual Automobile Ins. Co. Only respondent Toyota of Jefferson, Inc., was cast in damages by the trial court; the other defendants were dismissed.

      . L.C.C. art. 1934 provides :
      “Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following' exceptions and modifications.”
      * * * * #

      . In the Jaelc case, the court stated:
      “[W]e believe that a contract for the construction of a home . . . has as its object the convenience of the owner within the meaning and intendment of the phrase ‘or some convenience’ as used in Paragraph 3, Article 1934, LSA-R.C.C. entitling the owner of a residence to damages for inconvenience resulting from a contractor’s breach of the obligation . . . . ” 128 So.2d at 72.

      .For an excellent comment on this subject, including the “liberal,” “broad,” and “strict” interpretation in the jurisprudence see “Damages ex contractu: Recovery of Nonpecuniary Damages For Breach of Contract Under Louisiana Civil Code Article 1934,” by Henri Wolbrette, III, 48 Tul.L.Rev. 1160 (1974).

      . It lias been suggested that the source of this paragraph was Toullier, 6 Droit Civil, Liv. Ill, Tit. Ill, Chap. Ill, See. IV, § III, n. 293 (305 seq.) and Domat, I Loix Civiles, Part. I, Liv. Ill, Tit. V, Sec. II, ns. XI, XII (270). Batiza, The Actual Sources of the Louisiana Project of 1823: A General Analytical Survey, 47 Tul.L.Rev. 1, 80 (1972). Neither of these sources, however, contained the precise idea contained in 1934 (3), although Domat does include a passage suggestive of the principle incorporated in 1934(3). See 48 Tul.L.Rev., supra at 1173.

      . I A General Digest of the Acts of the Legislature of Louisiana passed from the year 1804, to 1827, Inclusive 223 (1928); see generally Dainow, The Louisiana Civil Law, in Civil Code of Louisiana (Dainow ed., 1961).

      . 48 Tul.L.Rev., supra at 1174.

      . While the disjunctive “or” prefacing “some convenience” or other legal gratification might arguably suggest that nonpecuniary damages are allowed “where the contract has for its object the gratification” of “some convenience,” the ambiguity in the language of the paragraph becomes apparent when article 1934 is read in its entirety and in conjunction with article 1926. Article 1926 provides that in breach of contract cases damages may be given “according to the rules established in the following section.” Article 1934 appears in the following section of the Code. It provides at the outset that with an exception not here relevant damages due for breach of contract are the amounts of loss and deprived profits, except for exceptions and modifications related thereafter in three numbered paragraphs. The third numbered paragraph recites the general rule, and then there appears the exception which employs the language here at issue. See Footnote 1, second sentence of the quoted article 1934(3). If that sentence were intended to allow nonpecuniary damages where a contract has for its object “some” (virtually every contract of which we can conceive) convenience there would be no sense to the outset language of article 1934 limiting damage to losses sustained and profits of which deprived as a general proposition.

      . Only the comma after “morality” was deleted in the version of the passage in the 1870 Code.

      . 2 M. Planiol, Traite Elementaire de Dorit Civil No. 252 (11th ed. La.State L.Inst.Trans. (1959)).


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    Stephen L. CARTER et al. v. SUCCESSION of Orlando B. CARTER.
    No. 57212.
    Supreme Court of Louisiana.
    May 17, 1976.

      Oliver P. Stockwell, William E. Shad-dock, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, for defendant-applicant.
    J. B. Jones, Jr., Jones, Jones & Alexander, Cameron, for plaintiffs-respondents.
   SUMMERS, Justice.

Orlando B. Carter departed this life in Cameron Parish on November 28, 1973. He died without issue, never adopted anyone and left no ascendants. He was survived by his wife of many years, three brothers and three sisters. He left this last will and testament in olographic form:

“Cameron, La.
December 6, 1970
To whom this may concern:
I, Orlando B. Carter, being sound of mind and realizing the uncertainties of life do hereby make this my last will and testament:
I do hereby bequeath unto my beloved wife, Tavia Rutherford Carter all of my interest in our home place consisting of fifteen acres more or less.
I further bequeath all of my interest received as a legal heir from (my parents) Selika P. Carter natural mother and S. O. Carter my natural father.
All cash, bonds, and other valuables I may possess at my death.
Thus done on the 6th day of December in the year of 1970 A.D.
Orlando B. Carter”

The will was presented for probate by decedent’s brothers and sisters, who alleged that they should be sent into possession in full ownership of his separate estate. These allegations are based upon the contention that the will makes no disposition of any property that formed a part of decedent’s separate estate.

The surviving widow in community answered, alleging that she was entitled by law, and under the terms of decedent’s last will and testament, to all of the property, rights and credits belonging to the community of acquets and gains formerly existing as a result of her marriage to decedent, and, under the terms of the will, to the ownership and possession of all property-belonging to decedent’s separate estate.

The widow was appointed administratrix of the succession, and one of decedent’s brothers and two sisters dismissed the claims previously filed by them in these succession proceedings. The remaining two brothers and one sister accepted decedent’s succession, including any part accruing to them by virtue of the alleged renunciation of their brother and sisters. A motion for summary judgment, as amended; filed by the widow and her exception of no right or cause of action were referred to the merits. The issue thus presented was submitted for decision, it being stipulated that the controversy was to be decided by interpreting the will on its face without extraneous evidence.

The trial judge held that the testator bequeathed his entire estate to his wife. On appeal the Third Circuit reversed, holding that decedent failed to name any legatee to his separate estate and, therefore, other than the bequest to the widow of the home place, decedent died intestate. 321 So.2d 370. Certiorari was granted on the widow’s application. 323 So.2d 804.

The question is, therefore, does the language of this testament constitute a bequest to the widow Tavia Rutherford Carter of decedent’s entire estate, or is the failure to name a legatee after “I further bequeath” a manifestation of the testator’s intention not to dispose of his separate estate by will.

Restated, the contention of the surviving widow is that under the terms of the will she is made the sole legatee of decedent’s entire estate, including both his separate property and his half of the community. The brothers and sister contend, on the other hand, that decedent bequeathed to his wife only his interest in the home place and that he died intestate as to his separate estate and his share of the community property.

The brothers and sister argue that the failure of the testator to name a legatee or legatees after the words “I further bequeath” left the property received by the testator from his parents (his separate property) and his interest in all cash, bonds, and other valuables (community property) undisposed of. To hold otherwise, they contend, would require the court to name the legatee which it has no responsibility or authority to do.

Two articles of the Civil Code establish basic principles to be applied to the interpretation of wills:

Article 1712: “In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”
Article 1713: “A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.”

Principally, courts must endeavor to ascertain the testator’s intention. All other rules are only means to that end. Succession of La Barre, 179 La. 45, 153 So. 15 (1934); Succession of McBurney, 165 La. 357, 115 So. 618 (1928); Succession of Blakemore, 43 La.Ann. 845, 9 So. 496 (1891). The function of the court is to determine and carry out the intention of the testator if it can be ascertained from the language of the will. Succession of Wilcox, 165 La. 803, 116 So. 192 (1928).

“This intention must be ascertained from the whole will, and effect must be given to every part of the will as far as the law will permit. No part of a will should be rejected, except what the law makes it necessary to reject. Where it is a question of the choice between two interpretations, one of which will effectuate, and the other will defeat, a testator’s intention, the court will carry out the intention of the testator.
“There is also another rule which is invariably followed by the courts in interpreting a will; namely, that, if possible, the will should be read so as to lead to a testacy, not to an intestacy.” Succession of La Barre, supra 179 La. at page 48, 153 So. at page 16.

In the absence of contrary expressions, the law presumes that when a will is executed the testator intends to dispose of his entire estate. Succession of Killingsworth, 292 So.2d 536 (La.1973); Succession of Montegut, 211 La. 112, 29 So.2d 583 (1947); Succession of Fertel, 208 La. 614, 23 So.2d 234 (1945). And the cases have recognized that in the interpretation of wills, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view. Succession of La Barre, supra; Succession of Bobb, 41 La.Ann. 247, 5 So. 757 (1889).

When the will in the case at bar is read with these principles serving as guides to its interpretation, the reader gains the impression that the testator intended to bequeath all things mentioned therein to his widow.

It is evident from a reading of the will that it was written by the testator without the aid of counsel. The law is indulgent in such cases. It exempts language from technical restraint and obeys the clear intention however informally conveyed. If obscurity arises from a lack of clear expression, it seeks the intention in a purpose, consistent and rational, rather than the reverse; and of two interpretations, it selects that which favors testacy. Succession of Fertel, 208 La. 614, 23 So.2d 234 (1945); Succession of Blakemore, 43 La.Ann. 845, 9 So. 496 (1891).

The brothers and sisters assert that the testator inadvertently omitted the names of legatees after the words, “I further bequeath”. But such an omission may not be assumed. Only one legatee is named in the entire will — the testator’s wife; and when the testator wrote “I further bequeath” we are of the opinion it was his intention to bequeath the property, rights and credits thereafter named to his wife as a further bequest — just as it is written. It would require a strained and unnatural interpretation to conclude that the testator declared that he further bequeathed all of his interest in his separate property, and all of the cash, bonds and other valuables he possessed but nevertheless failed to name the legatee or legatees who were to be the beneficiaries. Such a reading renders all stipulations after “I further bequeath” ineffective. Such a result is contrary to Article 1713 of the Civil Code directing that “a disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.”

A more plausible result requires that, since the testator had already named his wife as legatee, this “further” bequest was undoubtedly intended for her benefit. This interpretation gives meaning and effect to the expressed intention to “further bequeath” and to the presumption that the testator intended to dispose of his entire estate. Such a result gives effect to a meaning the will makes obvious — only one legatee is named, only one was intended.

It is also argued on behalf of the brothers and sister that the words “I further bequeath” begin a new paragraph; hence these words manifest the writer’s intention to depart from the bequest to the wife contained in the preceding paragraph. Conceding for the purpose of argument that the testator adopted a flush-paragraphing style instead of indenting the first line of each paragraph as is more often the practice, the argument is nevertheless untenable. Attention to grammatical considerations would more readily favor construing the words “I further bequeath” as transition words, used to show continuity of the comprehensve bequest to the wife begun in the preceding paragraph.

In concluding that the decedent intended to bequeath his entire estate to his wife, this Court is not adding the name of an omitted legatee as the brothers and sister contend. To the contrary, the holding is that the will named the legatee, and it should be understood as a bequest to the wife of decedent’s entire estate.

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside, and the judgment of the trial court is affirmed and made the judgment of this Court.


author: SUMMERS, Justice. TATE, Justice

text:
    STATE of Louisiana v. Raymond LOCKETT.
    No. 57404.
    Supreme Court of Louisiana.
    May 17, 1976.

      Frank G. De Salvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In a bill of information filed by the District Attorney of Orleans Parish on July 30, 1974, Raymond Lockett was charged with distribution of heroin on March 29, 1974. He was tried on October 24, 1974, found guilty as charged and sentenced to serve the remainder of his natural life in the custody of the Department of Corrections.

Assignments 1, 2 and 4

Shortly after 5 p. m. on the afternoon of March 29, 1974, Detective Gayle Roberson, at that time a federal agent, and Detective James Lewis of the New Orleans Police Department Narcotics Division, acting as undercover agents, picked up two confidential informants, Calvin Clark and Emanuel Stewart, in a cab Lewis was driving. They proceeded to the intersection of South Rampart and Erato Streets in New Orleans where they met Raymond Lockett; Stewart got out of the car, had a conversation with Lockett, returned to the car and then Detectives Roberson and Stewart went with Lockett to the side of a nearby building where Roberson handed Lockett sixty dollars. Lockett, in turn, handed Stewart five bags of heroin, which Stewart promptly handed to Roberson.

On the day of the trial a motion for continuance was filed on behalf of Lockett. He alleged that he had only recently learned of the existence of Calvin Clark and Emanuel Stewart, two material witnesses. Both were physically present with Detective Roberson at the time of the alleged offense, and “neither of them observed any criminal activity on the part of the accused.”

At the hearing on the motion, defense counsel testified that this prosecution was one of a series labeled “Checkmate”. In some of these trials the names of Clark and Stewart were mentioned as witnesses. These witnesses had resided in the five to ten hundred blocks of South Rampart Street during their entire lives, he said. When questioned by the State’s attorney, defense counsel admitted he had not contacted the District Attorney’s office about the case until the day before.

It was also shown that an in-Chambers Conference was held that morning with the judge, defense counsel and Assistant District Attorney in an effort to ascertain the whereabouts of the witnesses. At that time the Assistant District Attorney stated that these two witnesses would suffer contempt of court rather than respond to subpoenas.

The trial judge denied the continuance and then issued instanter subpoenas for Clark and Stewart at the addresses indicated by defense counsel — the five to ten hundred blocks of South Rampart Street.

Defense counsel then requested that the subpoenas be served on the federal authorities (Dangerous Drug Enforcement Agency) who, he said, had acknowledged knowing Clark and Stewart. The request was denied and defense counsel objected.

The record of the trial reveals that when the State finished its case, defendant, moved for a directed verdict, which was denied. Before the defendant was required to proceed with his defense, the trial judge called a recess until a return could be made on the subpoenas he had issued for the attendance of the witnesses Clark and Stewart.

After the recess, when court was again in session, defense counsel called Captain Marullo of the Criminal Sheriff’s Office of Orleans Parish. He testified he had two attachments, one was for Clark, whose address was 1931 Orleans Ave. This was a building where the lower floor was an empty business place and the upper floor consisted of vacant living apartments. He knocked and received no response there.

The second attachment was for Stewart, whose address was 732 Burgundy Street. This was an apartment building where the officer received no response. A locked iron gate prevented further efforts to serve the attachments. (These addresses were furnished to defense counsel by the State after the subpoenas were issued and he, in turn, gave them to the Criminal Sheriff.)

After Captain Marullo’s testimony, defense counsel asked the judge to hold the case open. This request was refused.

An application for continuance must allege “specifically the grounds upon which it is based.” La.Code Crim.Pro. art. 707. It shall not be granted after the trial or hearing has commenced La.Code Crim.Pro. art. 708. A motion for continuance based upon the absence of a witness must state:

“(1) Facts to which the absent witness is expected to testify showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred ; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.” La.Code Crim.Pro. art. 709.

Judged by these standards, there is no abuse of the discretion vested in the trial judge in such cases. The motion for continuance made only the conclusory allegation that “neither of them observed any criminal activity on the part of the accused.” This is not stating “specifically the grounds.” Id. art. 707. Although the trial had not commenced in the technical sense, the motion for continuance was not filed until shortly prior to the beginning of the trial on the day the case was assigned for trial. Id. art. 708. And the facts the witnesses would testify to were not set forth; nor were facts set forth in the motion showing a probability that the witnesses would be available if the trial were deferred. The record does not demonstrate due diligence in an effort to procure attendance of the witnesses. It will be recalled that defense counsel testified he only sought information concerning the whereabouts of the witnesses from the District Attorney the day before trial. Lockett was arrested on July 16, 1974 and this trial was on October 24, 1974, a period during which ample time was available for a thorough investigation. The trial judge did everything he was capable of doing, short of granting a continuance. He issued the subpoenas, and he compelled Detective Roberson to disclose the names of her informants in order to provide the defense with information relating to these witnesses. There was no abuse of discretion in his ruling.

The Articles of the Code referred to above are not platitudes. Unless the standards set out there are adhered to, the trial of cases will be unduly and unexpectedly delayed, and the handling of court dockets will be hampered. When the Code’s standards are complied with, however, the defendant is protected and there is little likelihood of prejudice to his case. Last minute requests for witnesses, when due diligence has not been shown to obtain their attendance, is not sanctioned by the Code.

These assignments are without merit.

Assignment 3

This assignment relates to the reception in evidence of State’s exhibits S-l, S-2, and S-3, a brown envelope containing a lock-seal envelope enclosing the packages of heroin, and a registered post office receipt.

Robert Arnold was called as a State witness. He was a chemist employed by the Federal Drug Enforcement Administration with offices in Miami. His duties were to analyze evidence to determine whether it was a narcotic or dangerous drug.

He testified that he received the evidence in the Lockett case from Agent Charles Park on April 3, 1974 and performed the analysis the next day. When he received the lock-seal envelope containing the evidence it was intact — the envelope had not been tampered with. He labeled and initialed the envelope and handed it to the custodian who placed it in the vault. He was qualified as an expert and described the test he performed on the brown powder contained in the envelope marked S-2. He found that the substance was heroin. When he was called to testify he withdrew the envelope from the vault and brought it to trial. He identified exhibits S-l and S-2.

Agent Charles Park with the Drug Enforcement Administration in New Orleans testified that he received the aluminum packets from Gayle Roberson on March 29, 1974 and placed them in a plastic envelope marked S-2, sealed and initialed it and wrote the case number and date thereon. On that envelope the name of James Lock-ett was shown as the defendant. Then he inserted the plastic envelope in an envelope marked S-l. He then mailed the brown envelope on that same day to the Miami Regional Laboratories by registered mail, return receipt requested. S-3 is the post office receipt showing delivery of the envelope to Miami. He identified all exhibits.

Detective Roberson testified that she surrendered the tin foil packets containing the heroin to Agent Park shortly after they were handed to her by Stewart. She met Park at a prearranged rendezvous in a motel within the city.

When the State offered exhibits S-l, S-2 and S-3 into evidence, defense counsel objected that these exhibits had not been identified with defendant. The argument is that the name of James Lockett, not Raymond Lockett, appeared on the envelope as the defendant in the case.

Despite this irregularity, the evidence otherwise carefully details the chain of custody, convincingly establishing that the heroin was the same which Raymond Lockett handed to Stewart on March 9, 1974 in the presence of Detective Roberson.

The rule of law we have recognized, which applies here, is set forth in State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972).

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264, 223 So.2d 402; State v. Martin, 250 La. 705, 198 So.2d 897; State v. Bertrand, 247 La. 232, 170 So.2d 386.
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521, 225 So.2d 201; State v. Whitfield, 253 La. 679, 219 So.2d 493; State v. Progue, 243 La. 337, 144 So.2d 352; 2 Wharton’s Criminal Evidence (12th ed.), § 673, p. 617.”

The ruling of the trial judge denying the defense objection to the exhibits was correct.

Assignment 5

Quoted hereafter are those portions of the Assistant District Attorney’s closing argument upon which the defense relies to support this assignment of error. The contention is that these statements are vio-lative of the mandate of Article 774 of the Code of Criminal Procedure that “[t]he argument shall be confined to evidence admitted . . ..”

The first statement made by the Assistant District Attorney in argument which defense counsel finds objectionable is: “Detective Roberson, Detective Lewis and these two informants are risking their lives because they have society’s interest at heart.” While this statement may not be categorically supported by empirical evidence in the record, the inference drawn from this hazardous service of the officers is not implausible. Inferences from the facts in the record (the service of these officers) are permitted to be drawn by counsel in argument. While counsel should be careful to draw reasonable inferences founded on legitimately established facts, wrong inferences are not necessarily fatal, for it seems to' be generally conceded that mistaken inferences drawn from the evidence by counsel in argument do not constitute misconduct warranting a reversal where they are not such as would necessarily or probably mislead the jury to the prejudice of defendant. Since the trial judge found this comment to be within the latitude allowed in argument, it must be concluded that he did not consider the inference unreasonable.

The next objection relates to the location of the two witnesses defendant sought to subpoena prior to trial. Their unavailability was relied upon as a ground for continuance. Because the motion for continuance was filed just prior to trial, and there was a lack of diligence exercised to locate the witnesses timely, the Assistant District Attorney’s statement that he “asked around for these people” (the witnesses) had no bearing on the merits of the case, only on the motion for continuance which had been denied, and therefore that issue was then moot. The same is true of this statement in argument that “these same two people (the witnesses) are wanted in Section F of this Court.” Besides, the trial judge instructed the jury to disregard this last statement.

This statement is said to be based upon evidence outside the record: “Mr. Johnson said the chemist came from the New Orleans area. There is only one Federal Narcotics office in the New Orleans area. It could have only come from one office. The FBI doesn’t work narcotics.” From the wording of the statement it is evident that it is made in rebuttal to statements of Mr. Johnson, defense counsel. Since we have not been furnished with the argument of defense counsel, and only part of the State’s argument, it is not feasible to determine whether the statement is proper rebuttal without the full context of both arguments.

“The U. S. Marshal’s Office doesn’t work narcotics. The U. S. Attorney’s Office doesn’t work narcotics.” This statement by the Assistant District Attorney is also obviously part of the State’s rebuttal argument, and it falls in the same category as the foregoing statements.

Although the fact that the FBI, the U. S. Marshal and the U. S. Attorney do not “work narcotics” may be known officially, it is not necessarily a matter of common knowledge. Nevertheless, when the comment is provoked by opposing counsel, the remark will not serve to upset a conviction. State v. Cascio, 219 La. 819, 54 So.2d 95 (1951); State v. Poe, 214 La. 606, 38 So.2d 359 (1949); State v. Borde, 209 La. 905, 25 So.2d 736 (1946). The comment is also not unreasonable because it is based upon a matter which may arguably come within judicial cognizance as part of the “laws of the . . . United States.” La.R.S. 15:422.

In any event, there is grave doubt that this argument influenced the jury to the prejudice of the defendant, considering the overwhelming proof of guilt. Before a verdict approved by a judge is set aside on ground of improper argument, this Court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. La. Code Crim.Pro. art. 921; State v. Dennis, 250 La. 125, 194 So.2d 720 (1967).

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

DIXON, J., concurs.

TATE, J., dissents and assigns reasons.

CALOGERO, J., dissents for reasons assigned by TATE, J.

TATE, Justice

(dissenting).

I respectfully dissent.

The defendant was denied his right to obtain compulsory process to secure the attendance of two witnesses whose location was known to the state, but not to him. These witnesses, confidential informants used by the state, had participated in the incident charged — an alleged sale of heroin by the defendant to two undercover police officers.

Aside from the police officers, these two informants were the only other witnesses to the alleged sale. The defendant, alleging that he had recently learned of their identity, attempted to subpoena them to prove that no criminal activity on his part had occurred when the four state agents had sought him out.

The state refused to produce the witnesses, alleging that they would suffer contempt of court rather than respond to subpoenas. The trial court refused to order that subpoenas to produce these witnesses be served upon the federal agency for which they worked.

It violates fundamental due process rights of fairness, and a defendant’s right to confront the witness against him and to secure witnesses he alleges are needed for his defense, for the state willfully to conceal the whereabouts of witnesses and to refuse to aid the court in securing their attendance. It was error for the trial court not to issue subpoenas upon the law enforcement agency for which they worked to secure the attendance of these witnesses.

We note, too, that the state had no difficulty in securing the presence of these same two witnesses in State v. Smith, 329 So.2d 725 (decided March 29, 1976), to testify for the state, as also in quite a few other trials in Orleans Parish (see Tr. 4-5). The state can produce these witnesses when it needs them; it should not be able to hide them when an accused (claims he) needs them.

Unlike the theory and practice in totalitarian countries, in America the state has an obligation, in prosecuting, not to deny an accused the right to produce witnesses whom he alleges will aid his defense. The state’s interests is not to convict, but to try fairly — and to leave it to the jury to convict, after full hearing of the accused’s defense. Fundamental due process and confrontation rights were here denied.

      . Although referred to in brief as Assignment of Error No. 5 by both the defense and the State, the matter appears as Assignment of Error Nos. 6, 8 and 9 in the record. Throughout this opinion the designation used by counsel in brief is used when referring to assignments of error.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Robert HUIZAR.
    No. 57392.
    Supreme Court of Louisiana.
    May 17, 1976.

      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. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Orleans Parish Grand Jury indicted the defendant Robert Huizar, for second degree murder in violation of LSA-R.S. 14:30.1. The jury found him guilty as charged and the judge sentenced him to life imprisonment. On appeal to this Court, the defendant consolidates his five assignments of error into three arguments. We find none of them to be meritorious, and we affirm the defendant’s conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant complains that the trial court erred in overruling his motion for the production of certain material during the hearing on the Bill of Particulars and the Prayer for Oyer. The specific information sought and not granted was: (1) information about whether anyone other than the defendant or the victim had or used the gun at the time of the killing; (2) weapons that the State intended to introduce into evidence; (3) all physical evidence the State intended to introduce as well as information concerning the time and date when and the persons by whom and from whom it was taken; (4) medical reports of examinations conducted by the coroner’s office reflecting the mental condition of the victim; and (5) results of all scientific tests conducted.

The defendant makes only a broad argument that much of the information denied him was exculpatory and that under the decision of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), he was therefore entitled to it. He also argues that the information sought which does not fall within the perimeters of Brady should have been given to him to enable him to properly prepare his defense. In support of this second argument he cites Azcona v. United States, 257 F.2d 462 (5th Cir. 1958).

In responding to the defendant’s motion for a Bill of Particulars and his Prayer for Oyer, the State supplied the following information: the date, time of day, and location of the offense; the name and age of the victim; the time and place of the victim’s demise; that the death was caused by a gunshot wound to the head inflicted by the accused’s pistol; a copy of the autopsy report; that no dangerous weapons were found on or near the person of the deceased; that the handgun used in the killing was not recovered; the details of the arrest, including the names of the arresting officers; a copy of the Rights of Arrestee form signed by the defendant; that no lineup was conducted; that the State had in its possession no written confessions; that the State intended to introduce an oral inculpatory statement made by the accused; the gist of an oral exculpatory statement made by the accused, that a friend of his shot the victim; that the State had no written exculpatory evidence; and the statute under which the prosecution was being conducted.

Insofar as the two requests seeking information about weapons are concerned, we note that the State offered no weapons into evidence at the trial. Additionally, the request for reports from the coroner’s office was rendered moot when the State gave the defense a copy of the autopsy protocol; further, as the trial judge concluded, this information was available to the defense through the coroner’s office, so there was no need to compel the State to disclose it. Under the jurisprudence, the defendant was not entitled to the other information sought. The Az-cona case cited by the defense, a federal prosecution, is inapposite because the discovery rules in the federal courts, considerably more liberal than those existing in Louisiana, are inapplicable to state courts. The Official Revision Comment to Article 484 of the Louisiana Code of Criminal Procedure admonishes against the use of the Bill of Particulars as a “fishing expedition” for a recital of the details of the State’s evidence or as a device to harass the State by demands for nonessential details. A defendant is entitled to know what the State intends to prove, but not the details of the evidence by which the State intends to prove its case. See, e. g., State v. Major, La., 318 So.2d 19 (1975); State v. Monk, La., 315 So.2d 727 (1975).

Finally, the granting of information sought in a motion for a Bill of Particulars is a matter that rests within the sound discretion of' the trial judge, and his ruling will not be disturbed absent a clear showing of abuse, resulting in prejudice to an accused. See, e. g., State v. Nelson, La., 306 So.2d 745 (1975); State v. Vince, La., 305 So.2d 916 (1975). No adequate showing of an abuse of discretion or of prejudice to the defendant has been made in the instant case.

The assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant made these assignments of error in connection with a defense objection to the State’s motion to declare one of the State witnesses a hostile witness, so that the State could impeach her. The witness was the wife of the murder victim and a sister of the defendant.

The relevant facts are these: The witness was with her husband at the time of the shooting. She testified at trial that she did not see who shot her husband or herself and did not see a gun anywhere. In response to a question by the district attorney, she stated that she did not recall making any statements to the police about having seen who fired the shots. Immediately thereafter, the district attorney moved to have the witness declared hostile; the defense attorney objected on the ground that no proper foundation had been laid. Out of the presence of the jury, the district attorney questioned the witness about specific statements she allegedly made the night of the shooting to various police officers, and she continued to deny any memory of having made the statements. The court overruled the objection and recalled the jury. The district attorney asked the witness whether she remembered making any statements at the hospital or later about who shot her husband and herself. Again she responded that she did not remember making any statements to anyone, and that her only memories of the shooting incident were that she heard shots, saw her husband fall, and felt herself getting shot. Thereupon, the judge denied the State’s motion to declare her a hostile witness.

The defendant argues that, although the State’s motion was denied, prejudice had already rsesulted because of the questions the district attorney had propounded to the witness in the presence of the jury. However, a review of the transcript convinces us that the State never established during the course of the witness’s testimony that she had in fact ever made any statements to the police, or that she had ever implicated her brother, the defendant, as the perpetrator of the crime. We hold that the defendant suffered no prejudice from these general questions. Consequently, under Article 921 of the Louisiana Code of Criminal Procedure, these assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

In these two assignments of error the defendant complains of the trial judge’s ruling that an inculpatory statement made to Officer Varnado by the defendant at the time of his arrest was voluntary and admissible in evidence. He relies upon the decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Officer Varnado testified that while he was handcuffing the defendant, whom he knew personally, and informing him that he was under arrest, the defendant began mumbling a confession to him. Immediately thereafter, he advised the defendant of his rights and asked him to relate again what had happened. The defendant did so without coercion, threats, or inducements.

It is apparent from the officer’s unrefuted testimony that he had no time to inform the defendant of his rights because while he was in the process of doing so, the defendant, without being questioned, volunteered a confession. Spontaneous, volunteered statements given without coercion or custodial interrogation are not subject to exclusion because of non-compliance with Miranda’s prior-warning requirements. State v. Thomas, La., 310 So.2d 517 (1975); State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

Under the circumstances shown, the assignments of error have no merit.

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


text:
    STATE of Louisiana v. Clifton ANDERSON, Sr.
    No. 57352.
    Supreme Court of Louisiana.
    May 17, 1976.

      W. Glenn Soileau, Ville Platte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pucheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, Clifton Anderson, Sr., was charged with attempted murder of two persons in separate indictments. After trial by jury, defendant was found guilty of attempted murder of Clifton Williams, Jr., and guilty of attempted manslaughter of Versie Soileau. The trial judge sentenced defendant to twelve years imprisonment for attempted murder and six years imprisonment for attempted manslaughter, the sentences to run consecutively.

On appeal, defendant relies upon five assignments of error for reversal of his conviction and sentence.

The background facts are that defendant’s son became involved in an altercation with Clifton Williams, Jr., in a combination grocery store and pool hall in Evangeline Parish. On learning of the controversy, the defendant came to the store armed with a pistol. He fired several shots at Williams, missed him, but wounded Versie Soileau, the daughter of the store owner.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the court erred in excluding Negroes from the petit jury and Grand Jury because they could not read and write the English language.

During the course of voir dire examination of prospective jurors, the State challenged for cause certain persons who testified that they could not read or write. The Court sustained the challenges, and defendant objected.

In brief, defense counsel argues that in a rural parish, such as that in which this case was tried, excluding persons who cannot read and write serves along with the use of peremptory challenges as a systematic exclusion of black persons from juries, constituting invidious discrimination and a denial of equal protection under the law.

Defendant’s allegations are without merit. Article 797 of the Louisiana Code of Criminal Procedure provides that either the State or the defendant may challenge a juror for cause on the ground that the juror lacks a qualification required by law. One qualification is that a juror be able to read, write, and speak the English language. LSA-C.Cr.P. Art. 401(3).

In challenging the jury selection process on the basis of invidious discrimination against a class of persons, the burden is on the defendant to make out a pri-ma facie case of a systematic exclusion. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).

Here, defendant has failed to show any systematic exclusion of black persons or any disproportionately low representation of blacks on juries or jury ve-nires in Evangeline Parish. He, therefore, has failed to make a prima facie showing. State v. Butler, La., 302 So.2d 585 (1974); State v. Leichman, La., 286 So.2d 649 (1973). In the absence of a prima facie showing of an historical, systematic pattern of exclusion of black jurors, the motive for the exercise of the peremptory challenge is not subject to our review. State v. Reed, La., 324 So.2d 373 (1975).

Furthermore, eight prospective jurors were excused because they could not read or write and because they could not understand the English language. Of those eight, the record discloses the races of only five; two of the five prospective jurors were white and three were black. Thus, the record refutes the contention that the literacy qualification operated against blacks only.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

In these assignments of error, defendant alleges that the court committed reversible error in refusing to allow defendant to summon the foreman of the Grand Jury to verify his signature on the indictment and that reversible error was committed when the official court record failed to show that the indictment was returned or even filed in the official court record of his case.

When the indictment was to be read, the clerk noticed that the indictment forms were not in the jacket in which he had the material pertaining to the case. Out of the presence of the jury, the court discovered that the indictments had been removed from the jackets by the district attorney for study and had inadvertently not been returned by him. The judge stated that the procedure in that court was that the district attorney, judge, or defense counsel could remove items from the folder. The trial judge stated that there was no question of authenticity, just that they had been temporarily misplaced. Thus, the court denied defendant compulsory process to obtain the foreman of the Grand Jury to identify his signature. On a factual basis, we can find no merit to defendant’s argument.

In Assignment of Error No. 3, defendant contends that reversible error was committed when the official court records failed to show that the indictment was returned or even filed in the official court record. Initially we note that we are unable to locate defendant’s objection in the record. Additionally, the minutes of the court filed in the record before us show that an indictment for attempted murder was filed on November 30,1972.

In brief, defense counsel notes that on the face of one of the bills of indictment is marked: “Filed November 30, 1973.” The outside of the indictment, however, shows the date of November 30, 1972. The latter date is obviously correct, since the trial was conducted in February, 1973.

Defendant has raised the discrepancy for the first time on this appeal. This Court has consistently held that the alleged deficiencies in the Bill of Information or Indictment cannot be raised for the first time after conviction where in fact the defendant has been fairly informed of the charge against him, where the indictment does in fact charge a crime, when the defendant may be protected against further prosecution by the double jeopardy provision, and when he has not been prejudiced by surprise or lack of notice. State v. James, La., 305 So.2d 514 (1974). In the present case, the 1973 date was obviously a clerical error.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

When it came time to read defendant’s plea on the arraignment, it was noted that the official books in which the court’s minutes are kept did not contain the minutes of the arraignment or pleas of the defendant to the charges on December 5, 1972. The court removed the jury and allowed evidence to supplement the minutes. The deputy clerk of court explained that his normal method of taking the minutes is in handwriting on a shorthand book. On December 5, when he came to the last page he had a few entries left and he turned the page and wrote on the back the minutes of defendant’s arraignment. When typing the minutes into the minute book, the clerk overlooked the entries on the back sheet. Also, the criminal court reporter, Eva C. Soileau, testified that she remembered very well her independent recollection that Clifton Anderson was arraigned on December 5 and pleaded not guilty. Upon hearing this evidence, the court ordered that the minutes be amended to reflect that Anderson was arraigned on both charges and pleaded not guilty to both on December 5.

At the time, defense counsel objected to the amendment of the minutes to show that defendant had been arraigned. He asked that a mistrial be granted because the minutes did not indicate defendant was ever arraigned. He never asserted that an arraignment did not in fact take place, but requested a mistrial because the minutes did not indicate that defendant had been arraigned.

This is a matter which addresses itself to the discretion of the trial court. We find no abuse of discretion.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

The defendant made this assignment of error to the admission in evidence of the pistol, allegedly used in the shooting, and an inculpatory statement of the defendant. He relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The background facts are these: On September 24, 1972, Deputy Sheriff Donald Miller received a call to come to So-ileau’s Grocery and Pool Hall. When he arrived, he talked to several people and received a report that a shooting had occurred in which Clifton Anderson, Sr., an acquaintance of his, was allegedly involved. The Deputy was at the grocery from five to ten minutes. Without further investigation, he drove to Anderson’s home, arriving there in about fifteen minutes. After he knocked at the door, Anderson came outside. The Deputy Sheriff advised him that anything he said “would be . evidence against him.” In response to the Deputy Sheriff’s general inquiry (what happened at Soileau’s place?), Anderson freely related to Deputy Miller that he had shot at Clifton Williams, who was in a group “fixing to bunch up on his son,” and that he did not intend to shoot the lady. He added that the gun was with his son, but did not inform the Deputy of the whereabouts of his son. The Deputy’s contact with the defendant at the home lasted about five minutes.

After the defendant’s statement to him, the Deputy Sheriff told the defendant he would have to come with him “until we could investigate it further.” Anderson agreed. The Deputy Sheriff then drove to the hospital to check on the victim. As he entered the hospital lobby with the defendant, the defendant’s son approached him and handed him the pistol, which he had in his pocket. Later, Anderson was taken to the Sheriff’s office where “he was placed under arrest” and in jail. Apparently, the outside investigation continued.

The following morning, Deputy Sheriff Aaron Fusilier decided to interrogate Anderson concerning the shooting. He first advised him of his rights.

The defendant then made a statement: “I shot at the man, I didn’t mean to hurt the lady.” He then identified the pistol as his and as the one he used in the shooting.

Defendant contends that the pistol was inadmissible, because it was obtained as a result of defendant’s statement at his home, made to the law enforcement officer without being advised of his constitutional rights as required by Miranda v. Arizona, supra. He invokes the “fruit of the poisoned tree” doctrine. See Silverthorne v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

In Miranda v. Arizona, supra, the United States Supreme Court held that statements obtained from the interrogation of a person in police custody could not be' used at trial unless the person had been previously advised of his rights: the right to remain silent; that any statement he makes can be used against him; the right to the presence of an attorney; that if he is unable to retain counsel, an attorney will be appointed for him prior to any questioning, if he so desires. The decision is directed to custodial interrogation. Although the court emphasized the “police-dominated atmosphere,” custodial interrogation can occur in places other than a police station. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

There can be no doubt that defendant did not receive the full four-fold warning when he emerged from his home in response to the knock of the Deputy Sheriff. As we have noted, the officer advised him only that anything he said could be used against him.

Under the circumstances of the present case, we think the defendant’s statement at his home should be classified as non-custodial. The defendant made it immediately after coming outside his home in response to the Deputy’s knock. The initial contact was one between acquaintances. The investigation, which at that point had lasted less than thirty minutes, was still in progress. Under the test announced in Miranda, the defendant had not. at that time been “taken into custody or otherwise deprived of his freedom of action in a significant way.” See State v. Ned, La., 326 So.2d 477 (1976).

Both the state and federal jurisprudence support the view that a single, general inquiry made to the defendant at his home during an investigation and prior to his arrest does not constitute custodial interrogation. See, e. g., United States v. Sicilia, 475 F.2d 308 (CA7 1973); Simon v. United States, 421 F.2d 667 (CA9 1970), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62; State v. Noriega, 6 Ariz.App. 428, 433 P.2d 281 (1967); People v. Fischetti, 47 Ill.2d 92, 264 N.E.2d 191 (1970); State v. McDonald, Iowa, 190 N.W.2d 402 (1971); Bernos v. State, 10 Md.App. 184, 268 A.2d 568 (1970); People v. P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967); State v. Crossen, 10 Or.App. 442, 499 P.2d 1357 (1972); Ison v. State, 281 Ala. 189, 200 So.2d 511 (1967); Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968); People v. Routt, 100 Ill.App.2d 388, 241 N.E.2d 206 (1968); Annot., Custodial Interrogation—Miranda Rule, 31 A.L.R.3d 565, at 587-595.

Moreover, in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the United States Supreme Court held that the “fruit of the poisoned tree” doctrine does not extend to evidence secured from a statement obtained without the full Miranda warnings, when the suspect’s right against compulsory self-incrimination under the Fifth Amendment has not been violated.

We conclude that the pistol was properly admitted in evidence.

The defendant also contends that the inculpatory statement taken the following morning is inadmissible because he was not previously advised of all of his constitutional rights as required by Miranda v. Arizona, supra.

The defendant relies upon the following testimony of Deputy Sheriff Fusilier:

“Q. Did you advise him of any other rights besides those you stated previously?.
“A. Naturally, I don’t know of any officers that know all of the; possibly all the constitutional rights, but I advised him of all that I told you usually that I usually use the procedure you know.”

In our opinion, the defendant mistakenly treats this as an admission that the officer did not know all of the Miranda rights and did not advise the defendant of them. When the officer’s testimony is considered as a whole, as must be done, he was merely voicing the well-known dictum that no officer knows all of the rights emanating from the constitution. He then referred to his prior testimony.

His prior testimony is clear that he advised defendant of all of the rights required by Miranda v. Arizona, supra.

We find, as did the trial judge, that the State affirmatively established that the defendant was advised of his constitutional rights and that his statement was otherwise free and voluntary.

Assignment of Error No. 5 is without merit.

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

CALOGERO, J., concurs.

DIXON, J., dissents.

      . “I have a card in my pocket, that I usually use, and so on and so forth, may I read it? I think I have it, I usually have it, I do this, some of my own, and refresher course on this. First of all, I told him, when I talked to Mr. Anderson, Champro, as we all know him by, around here. I told him as an officer of the law, it was my duty to tell him that, he was possibly would be, stand charged with a crime that could be of a serious nature, depending possibly on the outcome of the one person in question at the time is the one that supposedly had been shot, I told him that he had the right of course not to answer any questions, if I did question him, I told him that if he did say anything, any questions at all or any questions I might tell him or ask him that it could and possibly would have been used in a Court of Law, if there was a court of law to come up at any time (inaudible) I told him he was entitled to a lawyer, and if he couldn’t hire one the State would see that he gets one, and he was entitled to this lawyer if there was any questioning going on, if he wanted one. And, I also told him that if he is being questioned out of the presence of the lawyer, he may stop answering questions, any time that he desired he doesn’t have to go along with this.” [Tr. 390-391].


text:
    STATE of Louisiana v. Percy B. DARDAR, Sr., and Franklin Verrett.
    No. 57918.
    Supreme Court of Louisiana.
    June 9, 1976.
   In re: Percy B. Dardar, Sr., and Franklin Verrett, applying for supervisory writs.

Writ refused. No error in. ruling of the trial judge.

DIXON, J., is of the opinion the statute limiting the size of butterfly nets is unconstitutionally vague and the writ should be granted.


text:
    STATE of Louisiana v. Reggie GUICE.
    No. 57956.
    Supreme Court of Louisiana.
    June 4, 1976.
   In re: Reggie Guice applying for writ of review.

Writ Denied:

Treating this appeal as an application for supervisory writs, La.Sup.Ct. Rule I, Section 11, the application is denied; we are unwilling to disturb the factual appreciation of the trial judge that the previous plea was not voluntary.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Ronald SMITH.
    No. 57326.
    Supreme Court of Louisiana.
    May 17, 1976.
    Bernard E. Fulghum, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant Ronald Smith was charged by bill of information with the crime of armed robbery, in violation of R. S. 14:64. He was convicted in a jury trial on January 17, 1975 and subsequently sentenced to forty years imprisonment. On appeal he relies on one assignment of error.

The defendant contends that he was tried and convicted by a jury whose makeup was unconstitutional because it did not include a fair representation of women. The defendant relies upon provisions of the 1974 Constitution, under which he elected to be tried.

However, the defendant filed no motion to quash the jury venire. C.Cr.P. 535 provides :

“B. A motion to quash shall be filed at least three judicial days before commencement of trial, and may be filed with permission of the court at any time before commencement of trial, when based on any of the following grounds:
“(2) The general venire or the petit jury venire was improperly drawn, selected, or constituted;
D. The grounds for a motion to quash under Paragraphs B and C are waived unless a motion to quash is filed in conformity with those provisions.”

Under this article, therefore, the defendant waived any objection to the composition of the jury that he may have had by failing to file a timely motion to quash. State v. Dillard, 320 So.2d 116 (La.1975).

Defendant contends, however, that he properly raised the issue in a motion in arrest of judgment. C.Cr.P. 859 provides in part:

“The court shall arrest the judgment only on one or more of the following grounds:
“(4) The tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code.”

None of the cited articles authorize a challenge of the jury venire on the grounds that women were unconstitutionally excluded. This court has consistently held that a motion in arrest of judgment is not a proper procedural vehicle to challenge the composition of a jury venire. See State v. Wilson, 315 So.2d 646 (La.1975); State v. Kibby, 294 So.2d 196 (La.1974); State v. Brumfield, 263 La. 147, 267 So.2d 553 (1972).

Accordingly, the conviction and sentence are affirmed.

      . La.Const. art. 1, § 17 (1974) :
      “A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. . . .
      La.Const. art. 5, § 33 (1974) :

        “(A) Qualifications. A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled. The legislature may provide additional qualifications.

        “(B) Exemptions. The supreme court shall provide by rule for exemption of jurors.” There is no exemption for women. See Buie 25, Supreme Court Buies.


author:
Summers, J.,
      TATE, DIXON and CALOGERO, JJ.,

text:
    STATE of Louisiana v. Nicholas E. BAUDEAN.
    No. 58121.
    Supreme Court of Louisiana.
    June 3, 1976.
   In re: Nicholas E. Baudean applying for Stay Order.

Writ granted in part; denied in part.

The witness Parks should be made available to the defense for interview under court supervision. State v. Lovett, 329 So.2d 753 (La.1976). In all other respects, the writ is denied as relator is not entitled to the relief sought.

Summers, J.,

dissents from the granting of this writ. I would not disturb the orderly proceedings in the trial court in the absence of palpable error or irreparable damage to the applicant. Neither are present here. Applicant has an adequate remedy by appeal in the event of conviction.

TATE, DIXON and CALOGERO, JJ.,

concur in the denial as to items 1 and 2. The defendant is not now entitled to pretrial discovery of these items. However, the defendant will be denied due process and confrontation rights if, no later than the conclusion of Parks’ testimony, the State does not furnish this information to the defendant (to the extent it is known by the State), for his use in cross-examination of this state witness. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.


text:
    STATE of Louisiana v. Junius JONES.
    No. 57314.
    Supreme Court of Louisiana.
    May 17, 1976.

      Arthur A. Lemann, III, Supervising Attorney, New Orleans, Martha A. Azar, Paul A. Bonin, Student Practitioners, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Ju-nius Jones, with simple burglary in violation of LSA-R.S. 14:62. After trial, the jury found him guilty as charged, and the judge sentenced him as a multiple offender to twenty years imprisonment. On appeal to this Court, the defendant relies upon four assignments of error, which we have consolidated into two arguments. We find merit in neither argument and, therefore, affirm the defendant’s conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 3

These three assignments of error are related to the defendant’s claim that the jury venire from which the petit jury trying his case was selected was unconstitutionally composed. On the day of trial, January 22, 1975, the defendant orally moved to quash the entire jury panel “on the basis of exclusion of eighteen year olds.” The trial judge denied the motion at that time, but reserved to the defendant the right to introduce evidence after the trial in support of his contention.

On February 5, 1975, the defendant filed a motion in arrest of judgment on the ground that the trial jury did not conform to the requirements of Section 33 of Article V of the 1974 Louisiana Constitution, which provides in pertinent part:

“A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled. . . .”

The defendant subsequently filed a written motion to quash and a motion for a new trial, both of which also alleged noncompliance with Article V, § 33. He introduced no evidence on any of the motions, and they were denied.

In his brief to this Court, the defendant continues to argue non-compliance with the constitutional provision; he also contends, for the first time, that the jury commission failed to assemble a pool of jurors fairly representative of “a cross-section of the community” as required by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (decided January 21, 1975, one day prior to the trial in the instant case). In support of his argument to this Court, defendant relies, also for the first time, on our denial of certiorari in State v. de la Beckwith, La., 306 So.2d 310 (1975), in which the presiding judge of Section “A” of the Orleans Parish Criminal District Court (not the section in which defendant Jones was tried) had sustained a motion to quash on the ground of systematic exclusion of women and of eighteen to twenty-one year olds.

Because we find no merit to the substantive issue presented by the defendant in these three assignments of error, we pretermit a determination of whether the denial of the motion to quash is properly 'before this Court procedurally or whether any of the motions properly preserved for appellate review the allegation of systematic exclusion of any group other than eighteen to twenty-one year olds from the jury venire. The defendant’s arguments must fail because he introduced no evidence in the trial court to establish that the jury panel for the month of January, 1975, did not conform with Article V, § 33 of the Louisiana Constitution. In State v. Brown, La., 319 So.2d 409 (1975), we held that in order to support a challenge to the composition of a jury panel, a defendant is required “to make a showing that the state has not complied with the statutory procedures for composition of a petit jury ve-nire” or has systematically excluded a particular group from juries. As we stated in Brown, had the defendant established a prima facie case, the burden would have shifted to the State to demonstrate that no discrimination was practiced. Turner v. Fouch, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).

The defendant Jones made no showing to support his assertions in the trial court, and he, therefore, did not carry his burden of establishing a prima facie case. His reliance on appeal upon a denial of certiorari in another case cannot cure his failure to carry his burden of proof.

The assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

This assignment of error is based on an objection made during the multiple billing proceeding when the trial judge took judicial notice of the fact that the defendant involved was the same individual who had been convicted in his court of simple burglary approximately two and one-half weeks previously. The defense asserts that this procedure failed to comply with LSA-R.S. 15:529.1(F), which provides:

“The certificates of the warden or other chief officer of any state prison, . containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent oifense of the imprisonment and discharge of the person, . . . .”

The proceeding in which the trial judge took notice of defendant’s identity resulted in the basic conviction for which the multiple-offender sentence was imposed.

Our decision in State v. O'Day, 191 La. 380, 185 So. 290 (1938), remains a valid statement of the law on this issue:

“. . . The present proceeding is a part of the original prosecution against him for that crime. State v. Guidry, 169 La. 215, 124 So. 832. Our learned brother below had the right to take judicial cognizance of any prior proceeding which was a part of the same case he had previously tried. The filing of the information was solely and only for the purpose of having the court impose a sentence upon the accused, according to the laws of this State, as a second or third offender. Therefore, proof that he was the prisoner who had been sentenced by the judge under the previous conviction by the jury was not necessary.”

Moreover, this Court recently held that the procedures set forth in LSA-R.S. 15:529.1(F) are not the exclusive means by which the identity of a defendant in a multiple offender proceeding may be proved. State v. Maduell, La,, 326 So.2d 820 (1976).

The assignment of error is without merit.

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


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Patsy Ann JACK.
    No. 57329.
    Supreme Court of Louisiana.
    May 17, 1976.
    William L. McLeod, Jr., Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen, Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Anthony J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Patsy Ann Jack was charged by bill of information with having committed theft on July 18, 1975 “by shoplifting assorted merchandise having a value of three hundred one & 14/100 ($301.14) the property of Krogers Family Center, in violation of LSA-R.S. 14:67.” After trial by jury, defendant was found guilty as charged and was subsequently sentenced to six months in the parish jail with credit for time served prior to sentence. Defendant moved for and was granted an appeal. In addition to setting the return date, the trial judge set the date for defendant to designate those errors which were to be urged on appeal and to file this assignment of error with the trial court. He also fixed the date within which defendant shall, or the state may, designate the portion of the record to be lodged with the appellate court.

Defendant designated and filed a single assignment of error with the trial court. The error assigned was that the “verdict of the jury is not justified by the law and the evidence.” She further designated the entire transcript of the trial as the record to be lodged with the appellate court. Finding that the single assignment of error presented nothing for appellate review, the trial judge denied defendant’s request for the entire transcript of the trial. Defendant then applied to this court for relief under our supervisory jurisdiction. We denied relief on January 30, 1976, stating that “[sjince the single assignment of error presents nothing for our review, the ruling of the trial judge is correct.” On appeal, defendant asserts that she has no additional points of law to present in view of this court’s ruling on her application for writs.

In criminal matters, the scope of this court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, § 5(C) (1974). A criminal case shall be appealable to this court if the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed. La.Const. art. 5, § 5(D)(2) (1974). In the instant case, R.S. 14:67 provides that theft of articles having a value of more than one hundred dollars but less than five hundred dollars is punishable by imprisonment, with or without hard labor, for not more than two years, or a fine of not more than two thousand dollars, or both. Article 933(3) of the Code of Criminal Procedure defines a felony as an offense that may be punished by death or by imprisonment at hard labor. Hence, defendant was convicted of a felony; this court has appellate jurisdiction in the case but the scope of our review is limited to questions of law. La.Const. art. 5, § 5(C) and (D)(2) (1974).

A contention such as presented here, that the verdict of the jury is not justified by the law and evidence, is an attack on the sufficiency of the evidence. Sufficiency of the evidence is a question of fact. The jurisprudence is uniform in holding that this court is without jurisdiction to pass on the sufficiency of the evidence in a criminal case. Only where it is alleged that there is no evidence at all upon some essential element of the crime charged is a question of law presented which this court can review. A claim that the verdict is contrary to the law and the evidence is a proper ground for claiming a new trial in the trial court. La.Code Crim.P. art. 851(1), as amended Acts 1974, No. 207, § 1. However, even where error is assigned to the refusal of the trial judge to grant a motion for a new trial grounded on the allegation that the verdict is contrary to the law and evidence, nothing is presented for our review. La.Code Crim.P. art. 858 (1966). State v. Celestine, 320 So.2d 161 (La.1975); State v. Hollingsworth, 292 So.2d 516 (La.1974); State v. Gilbert, 286 So.2d 345 (La.1973); State v. Plummer, 281 So.2d 716 (La.1973). No other errors are assigned. We have examined the record and find no errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim. P., art. 920(2), amended by Acts 1974, No. 207, § 1.

DECREE

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

DIXON, J., concurs.