author: PER CURIAM. DENNIS, Justice,

text:
    STATE of Louisiana v. Harney E. HOOPER, Jr.
    No. 61312.
    Supreme Court of Louisiana.
    Jan. 23, 1978.
   PER CURIAM.

On May 2, 1977 defendant pled guilty to one count of public bribery as part of a plea bargain. Consistent with that bargain he was sentenced to five years at hard labor, the sentence to be served concurrently with a five year federal sentence previously imposed for the same conduct, and subject to “any type diminution which may fall” to defendant’s advantage in Federal Court. Simultaneously, and consistent with the bargain, the Court on motion of the defendant ordered a deferral of execution of the state sentence “until such time as execution of the federal sentence.”

Court minutes for May 2, 1977 further reflect that ten additional counts of public bribery were nol pressed, the transcript of the hearing reflecting that these additional charges would be dismissed “subject to . the fact [defendant] will cooperate one hundred percent truthfully with the state investigation before the grand jury and any subsequent testimony at any subsequent trial.”

We are not here confronted with a contention by the state that they are entitled to reinstitute prosecution on the ten nol pressed charges because defendant may not have lived up to his agreement to cooperate with federal and state prosecutors. Nor are we presented a contention that the sentence imposed should be nullified, defendant’s guilty plea withdrawn and prosecution reinstituted. Nor need we decide at this time what may be the effect upon defendant’s obligation to serve the state sentence should defendant’s federal conviction be reversed by the Fifth Circuit Court of Appeal.

The only question is whether, with respect to the time of execution of the state sentence, the trial judge for whatever reason may change the effect of defendant’s plea inducing agreement with the state, and order execution of the state sentence now, before execution of the federal sentence.

We conclude that he may not. Implicit in the bargain is the fact that but for each element of the sentence, including deferred execution, defendant would not have pled guilty. Accordingly the writ sought by defendant is granted. Execution of defendant’s sentence is deferred “until such time as the execution of the federal sentence” consistent with the trial court’s order entered simultaneously with entry of defendant’s guilty plea.

DENNIS, J., joins in the per curiam opinion and assigns additional concurring reasons.

SANDERS, C. J., dissents from this disposition, but would remand this case for an evidentiary hearing to determine whether defendant breached the plea agreement.

DENNIS, Justice,

assigning additional concurring reasons.

It should be noted that nothing could be accomplished by requiring the trial court to conduct an evidentiary hearing. We already have a copy of the hearing held in connection with the defendant’s guilty plea. It clearly reflects that the basic plea bargain was between the defendant, who agreed to plead guilty to one charge, and the district attorney, who agreed to drop other charges. The district court did not, and in my opinion legally could not, impose a conditional sentence which could be withdrawn and replaced with a more burdensome sentence contingent upon future conduct of the defendant. The issues of whether the State may reinstate the dismissed charges and have the sentence and defendant’s guilty plea set aside are not encompassed in this proceeding.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Thomas A. RHYMES.
    No. 60422.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Roger C. Edwards, Roger E. Boynton, Abbeville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Richard J. Putnam, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant was convicted after trial by jury of second degree murder and sentenced to life imprisonment, without benefit of parole, probation or suspension of sentence for a period of forty years.

Because we find no reversible error in any of defendant’s eighteen assignments of error, the conviction and sentence are affirmed.


author: SANDERS, C. J.,

text:
    Dyke SPEAR d/b/a Broadway Productions v. STATE of Louisiana.
    No. 61708.
    Supreme Court of Louisiana.
    March 1, 1978.
   In re: Dyke Spear applying for supervisory writs (St. Bernard Parish).

Writ Granted:

The judgment of the trial court is reversed, and the suit is dismissed.

There is an insufficient showing in this case to enjoin, before it is performed, a production which is presumed to be entitled to the protection of the First Amendment guarantee of freedom of expression. There has been no significant adversary hearing with adequate notice to defendant under R.S. 13:4713 to determine obscenity. There is no evidence ''this court can review to determine whether the trial judge was correct in his conclusion that the production lacked serious literary or artistic value or that the sexual conduct is to be portrayed for its own sake alone.

SANDERS, C. J.,

dissents from the granting of the writ, being of the opinion that the viewing of the show by the trial judge is sufficient to support a preliminary injunction, though additional evidence would be required for a permanent injunction.


author: TATE, Justice. DIXON, J., PER CURIAM.

text:
    Winston H. SIMS, Plaintiff-Appellee-Respondent, v. Marcella McGinnis SIMS, Defendant-Appellant-Relator.
    No. 60719.
    Supreme Court of Louisiana.
    April 10, 1978.
    On Rehearing May 19, 1978.

      Michael Cavanaugh, Cavanaugh & Du-cote, Baton Rouge, for defendant-appellant-relator.
    Charles W. Wilson, III, Watson, Blanche, Wilson & Posner, Baton Rouge, for plaintiff-appellee-respondent.
   TATE, Justice.

The issue before us concerns the determination of a divorced wife’s interest in her former husband’s pension rights, insofar as they are attributable to his employment during the existence of the community.

The issue arises in the context of a suit to partition the community’s assets following its dissolution as the result of a divorce. The trial court held that the wife’s interest in the husband’s pension rights was limited to one-half its cash withdrawal value at the date of dissolution of the community ($14,446.95), and the court of appeal affirmed. 349 So.2d 974 (La.App. 1st Cir. 1977).

We granted certiorari, 351 So.2d 175 (La.1977), because we believed the wife’s contention to be meritorious that, instead, she was entitled to have recognized her interest in the pension funds or rights, when they become actually payable to or for the husband, in the proportion that they are attributable to the husband’s employment during the community.

Facts

Mr. and Mrs. Sims were married on May 30,1946. They were divorced on November 19, 1975, nearly thirty years later. The husband has been employed by the federal government since June 18, 1956 as an air traffic controller.

During the existence of the community, he had acquired certain federal pension rights as a result of his employment. 5 U.S.C. 8331 et seq. The parties agree that the retirement plan, or at least the funds contributed by the husband to it, are a community asset. They differ, as noted above, as to what interest the wife acquired in this community asset.

The federal retirement plan is contributory — the employee and the government each deposit 7% of the employee’s basic pay into the United States Treasury. 5 U.S.C. § 8334(a)(1), (2). The annuity, however, is not tied to the amount of those contributions, but is made according to a schedule provided by statute. 5 U.S.C. § 8339.

The plan includes several alternative rights acquired by contributions to the plan. At least two annuity rights are here pertinent:

An annuity based upon a percentage of average pay during federal employment: (1) is payable to an employee with at least five years’ creditable service, which will become payable when the employee reaches 62 years of age, 5 U.S.C. § 8333, 8338; or (2) is payable to an air controller who is voluntarily or involuntarily separated from the service after the employee becomes 50 years of age and has completed 20 years of service in that capacity, 5 U.S.C. 8336(e) (1972).

An employee, upon separation from the federal service, may also obtain the refund of contributions made by him (not including the matching employer contributions) in lieu of any annuity right. 5 U.S.C. § 8342(a).

At the time the community was dissolved by divorce in 1975, the husband had 19 years and 5 months of creditable service. He did not become 50 years of age until September 23,1976, about ten months later. He thus did not become eligible to retire and receive immediate retirement benefits until that latter date.

On the date the community was dissolved, if the husband had then separated from the federal service, his retirement annuity would not commence until he was 62 years of age; or, upon such separation he could have received the return of the $14,-446.95 contributions made by him from community funds. (For later reference, illustrative computations of annuities payable are included in Appendix A of this opinion.)

The community’s interest in the pension plan or in payments made to or for the husband or as a result of his employment or contributions to such plan during the community

The trial and intermediate courts held that the wife’s interest in the pension plan was limited to the return of one-half of the community funds contributed to it, as if the husband had resigned his job and had elected this option on the date the community was dissolved.

This reasoning and result is erroneous on several accounts: (1) in fact, the husband did not elect this option but, instead, continued his employment; and (2) if this method of fictitious valuation had been appropriate, it overlooks that the contributions which established the pension rights, under the actual circumstance of continued employment, included not only the employee’s contributions but also the matching contributions by employer, which we have previously held represent an asset acquired by community earning and efforts, T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976).

More essentially, however, this reasoning and result underlook the fundamental nature of the community asset acquired in a retirement plan through employment of either spouse during the existence of the community. The community interest stems not only from contributions made by community funds, but also by reason of any right to receive proceeds attributable to such employment during the community (i. e., as an asset “acquire[d] during the marriage,” Civil Code Article 2402), whether based on the community’s contributions or not. T. L. James & Co., Inc. v. Montgomery, cited above.

As stated in T. L. James & Co., 332 So.2d 851: “When acquired during the existence of a marriage, the right-to-share [in a retirement plan] is a community asset which, at the dissolution of the community, must be so classified — even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time.” See also Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1966).

A spouse’s right to receive an annuity, lump-sum benefit, or other benefits payable by a retirement plan is, to the extent attributable to his employment during the community, therefore an asset of the community. Further, the community interest is not limited to the refund of community funds paid, usually (as here) greatly less in monetary value than the pension rights acquired as a result of the employment of one spouse of the community.

Accordingly, except in an isolated decision to be noted below, our courts have uniformly held that, at the dissolution of the community, the non-employed spouse is entitled to judgment recognizing that spouse’s interest in proceeds from a retirement annuity, or profit-sharing plan or contract, if and when they become payable, with the spouse’s interest to be recognized as one-half of any payments to be made, insofar as they are attributable to the other spouse’s contributions or employment during the existence of the community.

See: T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976); Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956); Moon v. Moon, 345 So.2d 168 (La.App.3d Cir. 1977), certiorari denied 347 So.2d 250 (La.1977); Swope v. Mitchell, 324 So.2d 461 (La.App.3d Cir. 1975); Lynch v. Lawrence, 293 So.2d 598 (La.App.4th Cir. 1974), certiorari denied 295 So.2d 809 (La.1974); Laffitte v. Laffitte, 253 So.2d 120 (La.App.2d Cir. 1971). Cf. Berry v. Equitable Life Assurance Society of U. S., 316 So.2d 399 (La.App.1st Cir. 1975). See also: LeVan, Allocating Deferred Compensation in Louisiana, 38 La.L.Rev. 35 (1977); Hughes, Community-Property Aspects of Profit-Sharing and Pension Plans in Texas, 44 Tex.L.Rev. 860 (1966).

Not in accord with the above decisions is Langlinais v. David, 289 So.2d 343 (La. App.3d Cir. 1974), followed by the intermediate court in the present case. There, the intermediate court rejected the wife’s claim to a share of the retirement benefits, since the husband had not retired at the date of the community’s dissolution; it awarded her only one-half the value of the husband’s account in the retirement fund. The result and reasoning are inconsistent with T. L. James & Co. and the other decisions cited, and th¿ decision is overruled insofar as inconsistent with them and with the present opinion.

As in T. L. James & Co., Messersmith, and the other decisions cited, our decree will recognize the wife’s proportionate interest in the retirement annuities, if and when they become payable, without attempting to fix a present monetary value for this interest, since it has none. (Unless the employment actually terminated following dissolution of the present community, for instance, the cash withdrawal value of the contributions is a fictitious value not proportionate to the actual retirement rights retained by the still-employed husband. See footnote 4 below.)

Due to the nature of the interest acquired by the community, as these decisions likewise recognize, it is not merchantable or susceptible to partition by licitation. The recognition of the respective interests of the spouses in this non-merchantable asset acquired during the community is analogous to a partition or division in kind. Of course, the parties between themselves can agree upon a valuation for purposes of conventional partition. See Due v. Due, 342 So.2d 161, 166 (La.1977).

The wife’s proportionate interest in any retirement plan proceeds, if and when payable to or for the husband’s account.

At the time of the dissolution of the community, as well as of the present date (at which, we are informed by the briefs, the husband is still employed as an air traffic controller), the community interest in the retirement plan has no immediate redeemable cash value. Until the employee is separated from the service, dies, retires, or becomes disabled, no value can be fixed upon his right to receive an annuity or upon lump-sum payments or other benefits to be paid on his account.

Nevertheless, under the decisions cited, the wife is entitled to a declaration at this time of the interest attributable to the community of any such payments, if and when they become due in the future. The interest attributable to (acquired by) the community in such payments, when they become due, is the proportionate part of them which results from a spouse’s employment or contributions during the existence of the community. When the community is dissolved, the non-employed spouse is entitled to have recognized his or her one-half interest in this community asset, i. e., the right to receive payments from employee benefit plans, to the extent (proportion) that these payments result from the employment or contributions during the community. T. L. James & Co. v. Montgomery, 332 So.2d 834 (La.1976) and decisions therein cited.

In the present plan, the federal employee’s annuity is determined by multiplying his average pay, as determined by the statute, by from IV2 to 2 per cent, depending upon his years of service. 5 U.S.C. § 8339(a). The amount of the annuity to which the employee will eventually be entitled, if he retires, cannot yet be fixed; the employee has not yet retired, and it is the date of his retirement (or separation or death) which fixes the employer’s obligation.

The contractual arrangements between the employer and the employee, by which benefits are not payable until such determinative date, is not altered by the dissolution of the community prior thereto. The community’s dissolution before such date does not substitute for the employee’s retirement (or separation or death) as the event which fixes the employer’s liability and which causes payments to become due. When they do become due, however, so as then to have a determinate value, the non-employed spouse is entitled to receive the proportion of them recognized by this judgment as attributable to the other spouse’s employment during the existence of the community.

In the present case, the husband’s creditable service during the existence of the community was 19 years, 5 months. The defendant wife has a one-half interest in compensation to the plaintiff husband which is attributable to that period. The proper ratio can be expressed in this way:

Portion of pension attributable to creditable service during existence of community _(19 years, 5 months)_ X X annuity (or Pension attributable to total creditable lump-sum payment) service (still not determined)

This computation determines the wife’s interest in each installment ultimately paid by the government to the husband or his designee.

(As has been stated, the ultimate amount of the annuity payable to the husband cannot be determined until the date of his retirement or separation from the service. We have, however, attached as Appendix A to this opinion an illustration of the application of the above formula to retirement benefits to which the husband would be entitled if he had retired on March 18, 1978.)

Decree

For the foregoing reasons, we reverse the judgments of the previous courts. It is ordered, adjudged, and decreed that there be judgment in favor of the defendant, Mrs. Marcella McGinnis Sims, and against the plaintiff, Winston H. Sims, recognizing and declaring her interest in any annuities, lump-sum payments, or other benefits from the Civil Service Retirement and Disability Fund, 5 U.S.C. § 8331 et seq., to or for her husband, Winston H. Sims, as a result of his federal employment for the 19 years and 5 months he was so employed during the community formerly existing between the plaintiff and the defendant.

All costs of this court and of appellate review are assessed against the husband-ap-pellee; all other costs, as imposed by the district court.

REVERSED AND RENDERED.

SUMMERS, J., concurs in the result.

DIXON, J.,

dissents. A right need not be marketable to have value. If the value of the right is ascertainable, the wife is entitled to lh that value on dissolution of the community. If it is not ascertainable, she is entitled to naught.

APPENDIX A

In illustration of the application of the formula, we compute the community’s (and the wife’s) interest in any pension payable to the husband, if he had retired on March 18, 1978 (i. e., after 21 years and 9 months of service as federal air controller, during 19 years and 5 months of which he was married to the defendant and living in community with her). The figures below are set forth merely by way of illustration. No claim is made to exact mathematical accuracy or to the necessary correctness of the husband’s average pay ($19,599.30) roughly calculated as the basis for the pension annuity.

As presently enacted, 5 U.S.C. § 8339(a) apparently provides that Mr. Sims’ annuity will be calculated on the basis of IV2 per cent for his first five years, 13h per cent for his next five years, and 2 per cent for each additional year.

If he were to retire March 18, 1978, the calculation would be as follows:

194% X $19,599.30 X 5 = 1,714.94 plus

2% X $19,599.30 X 11.75 = 4.605.88

(11 years, 9 mos.)

TOTAL ANNUITY $7,790.77

Of this amount the following is attributable to his employment during the community:

194% X average pay X 5 = 1,714.94 plus

2% X average pay X 9.42 = 3.692.45

(9 years, 5 mos.)

PORTION OF ANNUITY ATTRIBUT- $6,877.34 ABLE TO EMPLOYMENT DURING THE COMMUNITY

The wife’s share of the community attributable to her one-half interest in the community is therefore calculated as follows:

86.877.34 $7 790.77 x % x $7,790.77 = $3,438.67

(It is to be noted that, if the husband had retired on the date the community was dissolved, he was entitled to elect to receive a deferred annuity commencing at age 62, 5 U.S.C. § 8333, 8338, instead of withdrawing his contributions, 5 U.S.C. § 8342(a). Had he done so, under the above computations his pension would have been $6,877.34 annually, based upon his 19 years and 5 months of employment, from age 62 for the remainder of his life, together with certain surviv- or’s benefits, instead of the refund of $14,446.95 of contributions.)

ON REHEARING

PER CURIAM.

Relator, Marcella Sims, has applied for a rehearing contending that while we were correct on the central issue in this case we erred in determining that the husband’s creditable service (for retirement) during the existence of the .community was 19 years 5 months. She contends that an additional four years of military service should be added, thereby increasing the husband’s total of creditable service toward his federal retirement to 23 years 5 months.

In our original decision we determined at footnote 6 of our opinion that Mr. Sims was not entitled to credit for that 4 years of military service by virtue of 5 U.S.C. § 8332(c)(1) [inadvertently cited originally as 5 U.S.C. § 8332(e)(1)]. We now believe that in this respect we may have erred. While the sections of the federal statute are by no means clear, as we now read 5 U.S.C. § 8332(c)(1) Mr. Sims would seem to be entitled to a credit for his four years of military service.

Section 8332(c) of Title 5 of the United States Code provides:

(c) Except as provided by subsection (d) of this section [concerning Members of Congress], an employee or Member shall be allowed credit for periods of military service before the date of the separation on which title to annuity is based. However, if an employee or Member is awarded retired pay on account of military service, his military service may not be credited unless the retired pay is awarded—
(1) on account of a service-connected disability—
(A) incurred in combat with an enemy of the United States; or
(B) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by section 301 of title 38; or
(2) under chapter 67 of title 10. [relating to non-regular service, which we understand to be for reserve rather than regular military service]

Under this section a civil service employee is entitled to credit for military service except when he is already receiving pay “on account of military service,” i. e., receiving a military pension. In such cases military service can only be credited with respect to the civil service pension if the military pension being received has been awarded on account of: 1) a service connected disability; or 2) a non-regular service (Reserve) pension.

However, rather than correcting our original numerator of 19 years 5 months to 23 years 5 months we deem it appropriate to leave this matter unresolved at this time. Our difficulty with interpreting the federal statute indicates the inadvisability of making an unnecessary advance determination of Mr. Sims’ years of creditable service in the plan. When a final determination of such is made by the proper authority within the federal retirement system the appropriate number of years of service during the existence of the community can be included in the formula set out in our original opinion to determine Mrs. Sims’ interest in the funds to be received under the plan.

Because our decree in this per curiam on application for rehearing is adverse to respondent, we will afford him an opportunity to seek a rehearing within fourteen days from rendition of this per curiam opinion limited to the change in the decree.

For the foregoing reasons our original decree in this matter is amended so as to read as follows:

We reverse the judgments of the previous courts. It is ordered, adjudged, and decreed that there be judgment in favor of the defendant, Mrs. Marcella McGinnis Sims, and against the plaintiff, Winston H. Sims, recognizing and declaring her interest in any annuities, lump-sum payments, or other benefits from the Civil Service Retirement and Disability Fund, 5 U.S.C. § 8331 et seq., to or for her husband, Winston H. Sims, as a result of his federal employment and or service credit rights earned during the existence of the community between the plaintiff and the defendant.

All costs of this court and of appellate review are assessed against the husband-ap-pellee; all other costs, as imposed by the district court.

REVERSED AND RENDERED.

      . The result in this decision confirmed the right of the wife to receive a portion of the husband’s pension, when he commenced drawing it, attributable to the employment during the community. We do not necessarily approve the rationale or formula, insofar as in conflict with the clarification provided by the T. L. James & Co. and by the present decision. See also 35 La.L.Rev. 308-09 (1975).

      . Langlinais itself to some extent relied upon Hamilton v. Hamilton, 258 So.2d 661 (La.App.3d Cir. 1971). There, however, the plaintiff wife sought (only) a money judgment recognizing her value in the husband’s employee benefit plans, claiming only one-half the contributions made to these plans during the marriage. The husband’s appeal questioned her right to the value of contributions made by the employer (this contention was rejected) and also questioned contributions made during an interval of divorce before re-marriage. He further sought partition by licitation, instead of judgment fixing the wife’s interest, a demand which was rejected. Except for the last issue, the decision does not under its pleading reach the issue which concerns us now.

      . Further, like most retirement plans, the instant one forbids any execution-sale or non-family assignment of the proceeds of the plan. 5 U.S.C. § 8346(a). However, federal law does not preclude a state from classifying federal retirement rights as community property. See: Moon v. Moon, 345 So.2d 168, 176 (La.App.3d Cir. 1977); Swope v. Mitchell, 324 So.2d 461 (La.App.3d Cir. 1975).

      . If the husband employee had separated from the federal service on the date of dissolution of the community, it would have had such value if the employee had elected to receive the return of his contributions, 5 U.S.C. § 8342(a), instead of opting for receiving deferred retirement benefits commencing at age 62, 5 U.S.C. § 8333, 8338. He did not do so, however, so this valuation is inapplicable.
      About a year after the divorce, the husband could have retired at age 50. 5 U.S.C. § 8336(e). He did not do so, however. At present, the community’s retirement-plan interest, as yet inchoate, is in annuities or lump-sum payments to become payable in the future, as determined by the husband’s good-faith election of options available to him or by his death, separation from service, or involuntary retirement.

      .The two main prototypes of employee benefit plans are the “defined contribution” plan and the “defined benefit” plan. See Comment, The Relation of Community Property and Forced Heirship to Employee Retirement Plans, 51 Tul. L.Rev. 645, 647-48 (1977). In essential effect, the differences between these two types of plans are:
      (1) In the “defined contribution” plan, the employer promises to pay the employee, upon the occurrence of certain conditions, stated benefits from a sum comprised of contributions to a trust for the employee’s account. The ultimate value of the “pension” or payment to the employee, therefore, is directly related to the total of the sums contributed by the employer and, sometimes, by the employee as well. In this type of plan, the contributions made to the account during the community determine the interest of the community to share in the ultimate payments to the beneficiaries, in the proportion that such contributions made during the community bear to the total of the contributions from which the pension payments are made. See T. L. James & Co. v. Montgomery, cited above, in which the court thought it was concerned only with “defined contribution” plans.
      (2) In the “defined benefit” plan, the employer promises to pay the employee, upon the occurrence of certain conditions, stated benefits based upon the length of the employee’s service. The contributions of the employer and employee to the fund which secures this promise are based upon actuarial computations, but they are not otherwise related to the particular benefits payable or to the length of any particular employee’s service. See LeVan, 2 La. Estate Planner 45 (1976). The present litigation’s plan, for community valuation purposes, is a “defined benefit” plan, because the computation of the annuity is unrelated to the contributions made by either employer or employee. In this type of plan, Professor LeVan suggests, allocations or benefits should be determined on the basis of benefits “purchased” during the community rather than on the amount of the community’s contributions. LeVan, Allocating Deferred Compensation in Louisiana, 38 La.L. Rev. 35, 45 (1977).

      . The defendant suggests that the creditable service is actually 23 years, 5 months, including in the calculation plaintiffs four years of military service. But careful examination of the legislation which controls the issue reveals that plaintiffs military service is creditable only if his retirement is “on account of a service-connected disability.” 5 U.S.C. § 8332(c)(1). This is not the case here.

      . Deferring the actual valuation until distribution to the annuitant substantially increases the chance that the numerous variables which affect the ultimate pension will then be taken into account. See, e. g., the discussion in Hughes, “Community-Property Aspects of Profit-Sharing and Pension Plans in Texas— Recent Developments and Proposed Guidelines for the Future” 44 Tex.L.Rev. 860, 880-81 (1966).


author: DIXON, Justice.

text:
    Robert Daniel CHAPPUIS v. SEARS ROEBUCK AND COMPANY et al.
    No. 60725.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      Arthur Cobb, Arthur Cobb, Ltd., Baton Rouge, for plaintiff-applicant.
    Ben Louis Day, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for inter-venor.
    H. Evans Scobee, Durrett, Hardin, Hunter, Dameron & Fritchie, Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for defendants-respondents.
   DIXON, Justice.

Robert Daniel Chappuis was injured at work when a fragment of steel from a hammer he was using hit him in an eye. He brought suit against the retailer and the manufacturer of the hammer and an insurer. A jury returned a verdict in favor of the defendants. The Court of Appeal affirmed the trial court judgment, 349 So.2d 963 (1st Cir. 1977), and we granted writs. 351 So.2d 1208 (La.1977).

Chappuis was a twenty-two year old fine arts graduate of Louisiana State University, married, who took a summer’s job as a sheet metal worker’s helper in June of 1974. His employer was a small corporation operated by Tucker, who was home recuperating from surgery when Chappuis was hired. Chappuis worked exclusively with the sheet metal man, Smith, installing cooling and heating systems in houses under construction.

Chappuis was nailing two pine boards together with common nails when injured. He had worked only about three weeks, and had obtained the hammer from the employer’s truck. Neither Chappuis nor Smith nor Tucker was aware that the hammer had been damaged before the accident. Tucker’s wife had bought this hammer and two others from Sears in December of 1972 for $9.51.

All the relevant evidence is undisputed. The hammer was an ordinary claw hammer with curved claws and a fiberglass handle, of the kind commonly used by carpenters for driving nails. It and about two million other such hammers a year were manufactured by Vaughan and Bushnell, from whom Sears ordered hammers to their specifications, with Sears’ name and their “Craftsman” trademark and a warning label on the handle. The witness from Sears said the warnings had been on the hammers since about 1972; Vaughan and Bushnell had added the warning labels to hammers since 1966. The label was mutilated when Chappuis used the hammer, but, when new, was of this size and content:

WARNING BE SAFE WEAR SAFETY GOGGLES This hammer is intended tor driving and pulling common nails only Hammer face may chip if struck against another hammer, hardened nails, or other hard objects, possibly resulting in eye or other bodily injury.

The surgeon removed a steel chip about two and one-half mm long and one mm wide from the eye of Chappuis. The chip was later fitted in a larger chipped place from the edge of the hammer; experts located seven chipped places in the edge of the face of the hammer.

The evidence established careful manufacture and quality control of hammers by the manufacturer. Traditional and good quality steel was used, hardened to a depth of about three-sixteenth inches to a satisfactory hardness for the intended use of the hammer. The face of the hammer was called both the “ball” and “crown,” denoting its rounded, convex surface. There was a 45° chamfer, or beveled edge, about one-eighth inch deep around the face.

The manufacturer had never seen a chipped face on any of the thousands of damaged hammers which had been returned to it, but chipped edges were relatively common. A hammer in good condition could not be chipped when striking common nails. Chipping could occur when metal or tools as hard or harder than the hammer were struck a “foul blow,” or struck with the edge of the hammer.

However, once chipped, the hammer became unsafe, since it would likely chip again. Even striking a common nail with a chipped hammer might cause it to chip again. Once chipped, a hammer should be discarded. The manufacturer knew this, and all the experts agreed.

A trade association to which the manufacturer belonged had printed and distributed a few thousand booklets containing this information in 1973, after the manufacturer of the hammer here involved, but the warning was not on the warning label on the hammer, nor was it disseminated at the store where the hammer was bought.

The Court of Appeal held that “[T]here is ample evidence in this case from which the jury could have concluded that there was no defect in the design or manufacture of the hammer, and that it had been misused prior to the accident.” 349 So.2d at 965. Indeed, the jury answered “no” to the special interrogatory: “Do you find any defect in the design or manufacture of the hammer or do you find the defendants otherwise at fault which caused plaintiff’s injury?”

What the Court of Appeal overlooked (and the interrogatory to the jury omitted) was that, to recover, plaintiff need not prove defective design or manufacture, if he proves he was injured by a product “unreasonably dangerous to normal use.” Weber v. Fidelity & Casualty Ins. Co. of N. Y., 259 La. 599, 250 So.2d 754, 756.

The evidence is uncontradicted that Chappuis did not abuse the hammer, and that he was using the hammer “for driving and pulling common nails,” as stated in the warning, a remnant of which was still on the hammer when the accident happened. Chappuis’ use of the hammer was “normal use.” When all the experts and all the officers and employees of the manufacturer who testified agreed that a chipped hammer is so dangerous that it should be discarded, we can only conclude that such a hammer, placed in commerce without a warning that it must be discarded when chipped, is unreasonably dangerous to normal use. (See C.C. 2474: “The seller is bound to explain himself clearly respecting the extent of his obligations: any obscure or ambiguous clause is construed against him.”).

We find, therefore, that the knowledge which seems to have been peculiarly with the manufacturer and the experts— that a chipped hammer is dangerously likely to chip again in normal use — and the failure to inform the user of the danger is “fault” referred to in C.C. 2315. The failure to warn falls below the reasonable standard of care, established by statute: “The seller, who knows the vice of the thing he sells and omits to declare it, . is answerable to the buyer in damages.” C.C. 2545. The standard of care is fixed in Title VII, Of Sale; the liability to Chappuis is fixed by C.C. 2315, if he shows the failure to act “causes damage” to him.

The responsibility of Sears is the same as that of the manufacturer. First, it held the product out to the public as its own. Penn v. Inferno Manufacturing Corp., 199 So.2d 210 (La.App. 1st Cir. 1967). Second, the size, volume and merchandising practices of Sears, unlike those of Reliable Motors in Spillers v. Montgomery Ward et al., 282 So.2d 546 (La.App.2d Cir. 1973), bring Sears within the class of “professional venders,” who are presumed to know of the defects in their wares. See Morrow, Warranty of Quality, 14 Tul.L.Rev. 529, 539 (1940). Reliable Motors, Inc. was a relatively small truck retailer. The relationship between a retailer like Sears and its manufacturers on the other hand, with its capabilities for controlling the quality of its merchandise, justifies the imputation to Sears of knowledge of its defects.

The causal relationship between the injury to plaintiff and the absence of a warning about a danger known to the manufacturer is adequately demonstrated. It would be an unjustified assumption to say that store clerks, builders, tradesmen and hammer users of all kinds would be ignorant of the fact that a chipped hammer should be discarded if that warning were disseminated with each sale (at the rate of two million a year from one manufacturer alone). If Chappuis knew, or should have known of the danger, and chose, nevertheless, to use the dangerous instrument, he would have shared the fault of the manufacturer, and could not recover. Since he did not know, and could not reasonably have been expected to know, he did not share the fault for the accident.

Absolute liability upon a manufacturer whose product is useful, traditional, but which might become dangerous in some circumstances must be distinguished from the obligation here involved. There may be many tools or other products which become dangerous for normal use in certain conditions. But when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user. It would have been reasonable, in this case, for the manufacturer to add to the warning label the words “discard this hammer if it becomes chipped.” This record makes it difficult to understand why the warning was not made. It might be expected that some warnings might bring a reduction in sales, but that could not have been a factor in this case. Sears accepted the return of damaged hammers, even if they had been subject to abusive use; and, apparently, the manufacturer accepted the returned tools from its customers. In view of this policy, the warning could have stated, “if this hammer chips, return to seller.” Such warning would be expected (to a great extent) to remove dangerous hammers from use.

Defendants’ third party demand contended that in the event defendants should be held liable, they, as third party plaintiffs, are entitled to indemnification from Huey G. Tucker, president of the company employing plaintiff, and the company’s liability insurer, Sentry Insurance Company. They allege that Tucker, in his position as president, knew or should have known of the defective and unsuitable nature of the hammer furnished to plaintiff and was negligent in failing to inspect the hammer, in failing to warn plaintiff about its dangers, and in failing to supply plaintiff safety glasses or instruct him about safe methods for the hammer’s use. The jury, in determining that defendants were not liable, did not reach the third party demand. We conclude, however, from the record, that Tucker did not know of the danger and had no duty to know, absent a proper warning on the handle of the hammer.

For the foregoing reasons, the decisions of the Court of Appeal and trial court in favor of the defendants are reversed. Because the courts below did not reach the question of quantum, the case is remanded to the Court of Appeal for further proceedings not inconsistent with this opinion. In-tervenor, Sentry Insurance Company, is entitled to reimbursement for workman’s compensation benefits and medical expenses paid by it to plaintiff. All costs of these proceedings are to be borne by defendants, Sears Roebuck and Company, Vaughan and Bushnell Manufacturing Company, Continental Insurance Company and Lumbermens Mutual Casualty Company.

SUMMERS, J., dissents, agreeing -with the trial court and court of appeal on this fact question.

      . Cited as defendants were Sears Roebuck and Company, the seller of the hammer, Vaughan and Bushnell Manufacturing Company, the manufacturer of the hammer, and its insurers, Continental Insurance Company and Lumber-mens Mutual Casualty Company. Sentry Insurance Company, the workmen’s compensation insurer of plaintiffs employer, intervened for recovery of benefits and medical expenses paid out. Sears, Vaughan and Bushnell and Continental third partied the president of the company that employed plaintiff, Huey G. Tucker, and Sentry, as liability insurer.

      . “What are the guides to the court in Louisiana in making a determination of fault, i. e., offenses against the generally accepted standards of conduct? First is the Civil Code itself, which lays down, not only in the section devoted to ‘Offenses and Quasi-Offenses,’ but also elsewhere, rules and standards of conduct, which are binding on the individual citizen as civil obligations. Examples of these obligations are numerous. We have discussed in another place the role of Article 667 of the Civil Code respecting adjoining land owners and the making of new works. Reference may also be made to the duties placed upon owners of buildings to keep them in repair, the duties of vendors of goods to warn of known defects, the duties of suppliers of goods either gratuitously or for hire. These codal articles are directions to the court as to the generally accepted standards of conduct which are required in these transactions. If the operative facts of the codal article are shown to be present, fault exists and ' the obligation to repair arises unless by another article the obligation is dissolved or made inoperative. This latter qualification is simply the well-known maxim that a code is to be construed as a whole fabric and not as a set of isolated propositions.” Stone, Tort Doctrine in Louisiana: The Concept of Fault, 27 Tul.L.Rev. 1, 2-3 (1952).
      “. . . Under the Langlois conceptual breakthrough, ‘fault’ within articles 2315 and 2316 embraces more than intentional and negligent dereliction. In applying those articles, Louisiana courts are to go ‘to the many other articles in our Code . . which deal with the responsibility of certain persons, the responsibility in certain relationships, and the responsibility which arises due to certain types of activities.286 . . ”
      "286 Id. at 1077, 249 So.2d at 137. In Langlois the specific Code article read into the article 2315 ‘fault’ category was article 669, governing the responsibility for smoke and nauseous smell to neighboring houses. The fact that article 669 is by its terms restricted to ‘neighboring houses’ did not preclude its application via 2315 to other categories of plaintiffs. As the court in Ross [Ross v. John’s Bargain Stores Corporation, 5 Cir., 464 F.2d 111 (1972)] put it: ‘In essence the [Langlois] court was saying that a defendant may not take refuge behind an apparently applicable code section just because it does not specifically include the injured plaintiffs class.’ 464 F.2d at 113.” Robertson, Manufacturers’ Liability for Defective Products in Louisiana Law, 50 Tul.L.Rev. 50, 102-03 (1975). Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).

      . The author of this opinion believes the case should be remanded to the trial court, since there has been no jury determination of the question of damages; however, this court has firmly decided otherwise. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Gonzales v. The Xerox Corp., 320 So.2d 163 (La.1975).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Gregory ROBERTSON and Arthur Mitchell.
    No. 60909.
    Supreme Court of Louisiana.
    April 10, 1978.

      William J. O’Hara, III, Supervising Atty., Mary Coffman, Student Practitioner, New Orleans, for Arthur Mitchell.

      Linda S. A. Burke, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for Gregory Robertson.
    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.
   MARCUS, Justice.

Gregory Robertson and Arthur Mitchell were charged in the same bill of information with the crime of armed robbery in violation of La.R.S. 14:64. After trial by jury, they were found guilty as charged. Sentence was imposed by the court on Mitchell. Subsequently, the district attorney filed informations accusing Robertson of one previous felony conviction and accusing Mitchell of three previous felony convictions under La.R.S. 15:529.1 (Habitual Offender Law). Robertson admitted the allegations in the information; the trial judge found him to be an habitual offender and sentenced him to serve forty years at hard labor with credit for time served and assessed him sixty dollars court costs or, in default of payment thereof, ordered him to serve an additional thirty days in the parish prison. After hearing, the trial judge found Mitchell to be an habitual offender, vacated the previously imposed sentence, and sentenced him to serve ninety-nine years at hard labor with credit for time served. On appeal, defendant Robertson relies on eighteen assignments of error and defendant Mitchell relies on thirteen assignments of error for reversal of their convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 17 (ROBERTSON)

ASSIGNMENTS OF ERROR NOS. 3, 4, 5 AND 6 (MITCHELL)

Defendants contend the trial judge erred in denying their request for bureau of investigation (b. of i.) and computer runoff sheets containing information about a state witness’ criminal record and also erred in denying their motion for a one-week recess. They argue that the sheets and the recess were necessary to properly prepare to impeach the witness.

After commencement of trial but before the first witness was sworn, Jesse Lepree withdrew his former plea of not guilty and pled guilty to simple robbery. At this time, defendants requested production of the b. of i. sheet on Lepree and information as to the plea bargain agreement between the state and Lepree. The trial judge denied the request for the b. of i. sheet but ordered the state to make available to defendants the plea bargain agreement. Defendants also moved for a recess of one week to prepare for the possibility of Lepree’s testimony. The trial judge denied the motion but ordered a short recess to allow defendants an opportunity to speak with Lepree. Later during trial, Lepree testified as a state witness. On cross-examination, he clearly admitted two previous convictions for aggravated burglary. Defendants again requested production of the b. of i. and computer runoff sheets on Lepree. The state informed the court that it did not have the b. of i. sheet and that the computer runoff sheet was “very inaccurate” and detailed “simply ... a number of arrests.” Upon this representation, the trial judge denied defendants’ requests. Defendants also extensively cross-examined Lepree concerning his plea bargain with the state in relation to the instant case. A copy of the plea bargain agreement had been made available to defendants.

Defendants questioned Lepree in detail on cross-examination concerning his pri- or convictions, and Lepree clearly admitted two prior convictions for aggravated burglary in addition to his guilty plea to simple robbery in relation to the instant case. If Lepree’s testimony could be impeached by reference to his prior criminal record, the evidence produced would suffice to serve that purpose. State v. Jones, 345 So.2d 1161 (La.1977). In any event, we note that arrest and conviction records are public records and are available to the defense in accordance with La.R.S. 44:1, et seq.; defendants do not even allege the existence of any evidence of prior convictions not admitted by Lepree on cross-examination. Hence, there is no showing of any prejudice to the rights of defendants. Under the circumstances, we are unable to say that the trial judge erred in denying defendants’ request for the b. of i. and computer runoff sheets.

Defendants’ contention that the trial judge erred in refusing to grant a one-week recess is equally without merit. Defendants argue that the recess was necessary to prepare to impeach Lepree’s testimony by questioning him concerning prior convictions and his plea bargain agreement in relation to the instant case.

The decision to grant or deny a recess is within the sound discretion of the trial judge and will not be overturned on appellate review absent a clear abuse of discretion. State v. Jenkins, 340 So.2d 157 (La.1976). The trial judge ordered a short recess to allow defendants to speak with Lepree. On cross-examination, defendants questioned Lepree extensively concerning his prior convictions and plea bargain agreement. Defendants have made no showing of how an additional week of preparation would have increased the effectiveness of their cross-examination of Lepree on these matters. Hence, the trial judge did not abuse his discretion in refusing to grant a one-week recess.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 3, 7, 8 AND 11 (ROBERTSON)

Defendant Robertson contends the trial judge erred in admitting in evidence testimony concerning three handguns (State Exhibits 2, 3 and 4) and in allowing their exhibition before the jury prior to completion of the proper foundation for their admission in evidence. He also assigns as error admission in evidence of three handguns (State Exhibits 1, 2 and 3) on the ground that no proper foundation was laid establishing their connection with the case.

During trial, Joseph C. Bruce, an employee of Pailet and Penedo, testified that during the robbery one of the robbers motioned to him with a pistol at which time he had a good opportunity to observe the weapon. The state then showed the witness a pistol (S-4) for the purpose of identification only. Robertson’s objection to the exhibition of the weapon at this time was overruled by the trial judge. Thereupon, the witness identified the pistol as similar to the one used in the robbery. Later during trial, Jerome Kelley and Richard Dubea, also employees of Pailet and Penedo, both identified two pistols (S-l and S-4) as similar to ones used in the robbery. Subsequently, Officer Steinkamp identified three pistols (S-l, S-2 and S-3) as having been seized at the residence of Mitchell’s girlfriend. Robertson objected to this testimony and the exhibition of the weapons on the ground that no foundation had been laid establishing their connection with the case. The objections were overruled by the trial judge. Thereafter, Lepree identified each of the four handguns as one used in the robbery. Upon introduction of the weapons in evidence, Robertson objected on the ground that a proper foundation had not been laid for their admission.

The testimony of the employees of Pailet and Penedo and of Officer Stein-kamp identifying the various handguns and the exhibition of the weapons was part of the state’s foundation for introduction of the four weapons in evidence. At the time these witnesses were questioned about the handguns, the state made no effort to offer them in evidence. Hence, mention of the weapons and their exhibition before the jury were merely preliminary. The trial judge did not err in allowing their testimony and exhibition of the handguns because the court cannot control the state’s order of proof. La.Code Crim.P. art. 773; State v. Weathers, 320 So.2d 895 (La.1975); State v. Mitchell, 311 So.2d 888 (La.1975); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971). The state subsequently completed its evidence establishing the proper foundation for admission in evidence of the four handguns with the testimony of Lepree that each of the weapons was one actually used in the' armed robbery. Based upon the foregoing facts, we conclude that it was more probable than not that the four handguns were connected with the case. Hence, the trial judge did not err in admitting the weapons in evidence. State v. King, Nos. 60,732 and 60,733, 355 So.2d 1305 (La.1978); State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976).

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 4, 5, 13 AND 14 (ROBERTSON)

ASSIGNMENTS OF ERROR NOS. 1 AND 2 (MITCHELL)

Defendants contend the trial judge erred in overruling a motion to suppress and objections to the admission of physical evidence. Robertson further assigns as error the admission of testimony concerning the seizure of physical evidence.

At the hearing on the motion to suppress, Richard Schmitt testified that a man came to his used car lot and offered to trade him a stone for a car. He stated that he took the stone to an acquaintance who owned a restaurant and that this man offered to get it appraised. Officer James Steinkamp testified that on March 14, 1975, about 11:00 a. m., he was ordered to go to Pailet and Penedo jewelers to investigate the recovery of a diamond previously stolen in an armed robbery. (The instant armed robbery allegedly occurred on March 8, 1975.) He stated that Mr. Pailet advised him that Anthony Mandino, a restaurant operator, sent a diamond to him for appraisal and that he recognized the diamond as one taken during the robbery. Officers Steinkamp and Ronald Brady both testified that they interviewed Mr. Mandino and were informed that he had gotten the diamond from Mr. Schmitt. They stated that Mr. Schmitt told them that a black male had asked to trade the diamond for a car. Mr. Schmitt gave a physical description of this man. The officers also learned that the man was to return to the used car lot at 4:00 p. m. The used car lot was placed under surveillance, with Officer Brady inside the office and Officer Steinkamp waiting in the police vehicle. Officer Brady testified that about 4:00 p. m. a car pulled into the lot and that Mr. Schmitt identified the black male who got out of the car as the same man who had given him the diamond. Officer Brady notified Officer Steinkamp that the subject was on the lot, and he was apprehended. Officer Steinkamp’s testimony corroborated that of Officer Brady concerning Mr. Schmitt’s identification of defendant Mitchell as the man who had given him the diamond. Mr. Schmitt, however, denied having so identified the man. Officer Steinkamp testified that he recovered two watches and a ring from Mitchell at the time of his arrest. The watches had jeweler tags on them, with numbers identifying them as stock of Pailet and Penedo, and price tags. Based upon this evidence and a statement given by Mitchell indicating that more jewelry could be found at his restaurant, a search warrant was obtained, leading to the seizure of further evidence at the restaurant. The tridl record reveals that a subsequent search was made and evidence seized at the residence of the mother of Mitchell’s girlfriend, pursuant to her consent.

Defendants’ sole argument in support of these assignments of error is that the arrest of Mitchell was not based upon probable cause and was thus illegal, rendering the evidence seized incident to the arrest and pursuant to the search warrant based upon this information and information obtained thereafter inadmissible as “fruit of the poison tree.” In order to determine the merit of these assignments, we must decide whether the arrest of Mitchell was based upon probable cause to believe that he had committed a crime.

Article 213 of the Louisiana Code of Criminal Procedure provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer

Reasonable cause, which we have treated as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Williams, 349 So.2d 286 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976). Reasonable or probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Williams, supra; State v. Robinson, supra; State v. Marks, supra; State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the ease. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Williams, supra; State v. Robinson, supra; State v. Marks, supra; State v. Warren, 283 So.2d 740 (La.1973).

In the instant case, the police received information directly from Mr. Pailet by which they were able to trace the chain of possession of a recently stolen diamond through Mr. Mandino to Mr. Schmitt. The police learned that a black male had given Mr. Schmitt the diamond, attempting to trade it for a car, and was to return to the used car lot about 4:00 p. m. Although denied by Mr. Schmitt, Officer Brady testified that he identified a black male, Mitchell, who arrived at the used car lot about 4:00 p. m., as the person who had given him the diamond. The trial judge chose to accept the officer’s testimony on this point, which, after reviewing the record, we feel he was justified in doing. These circumstances, coupled with the suspicious act of attempting to trade a stolen diamond for a car within one week of the armed robbery, convince us that ample probable cause existed prior to the arrest of Mitchell. Hence, we find no merit to defendants’ contention that Mitchell’s arrest was not based upon probable cause; therefore, the physical evidence seized incident to his arrest and as a result of the search warrant based upon this information and information obtained thereafter was not inadmissible as “fruit of the poison tree.” The trial judge did not err in overruling the motion to suppress that evidence, the objections to its admission at trial, and the objections to the testimony concerning its seizure.

In brief, defendant Mitchell contends the trial judge erred in denying the motion to suppress the physical evidence seized at the residence of the mother of his girlfriend pursuant to her consent to the search. He argues that this consent was coerced and, hence, invalid.

No evidence was adduced at the motion to suppress concerning the consent to search; no objection was urged on the ground of invalid consent at the time the evidence was introduced at trial. It is well settled that a new basis for an objection cannot be raised for the first time on appeal. State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Marks, supra. In any event, the trial record indicates that valid consent to search the residence was given by the mother, who executed a consent form, and was acquiesced in by the girlfriend, who signed the form as a witness.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 6, 12 AND 18 (ROBERTSON)

ASSIGNMENTS OF ERROR NOS. 11 AND 12 (MITCHELL)

Defendants contend the trial judge erred in denying their motion for a mistrial and in admitting in evidence a shotgun, testimony concerning its seizure, and a photograph depicting the shotgun and other items.

During trial, Officer Steinkamp testified that a shotgun, jewelry, and other items were seized at defendant Mitchell’s restaurant pursuant to a search warrant. Defendants moved for a mistrial on the ground that no foundation had been laid connecting the shotgun with the case and, hence, mention of the shotgun was prejudicial to defendants. The trial judge denied the motion but admonished the jury to consider the shotgun only as an item seized at the restaurant. A photograph, State Exhibit 22, was shown to Officer Steinkamp, and he was asked if he recognized it. Defendants objected to “any questions in connection with State Exhibit S-22 because of the same weapon being part of that exhibit.” The objection was overruled. Two police officers identified the photograph as depicting jewelry and weapons they had assisted in seizing at Mitchell's restaurant. Later during trial, Lepree testified that a shotgun wrapped in Christmas foil was used in the armed robbery. He stated that jewelry was taken during the robbery and hidden at Mitchell’s restaurant. Upon introduction in evidence of the shotgun, defendants objected on the ground that the proper foundation had not been laid to connect the shotgun with the case. When the photograph of the jewelry and weapons, including the shotgun, was introduced in evidence, defendants objected on the grounds that the photograph depicted the inadmissible shotgun and that the proper foundation had not been laid for admission of the photograph in evidence.

Defendants’ contentions that mention of the shotgun prior to completion of the proper foundation for its admission in evidence warranted a mistrial and that the shotgun, testimony concerning it, and the photograph depicting it were inadmissible are without merit.

Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but, when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible. La.Code Crim.P. art. 773. To admit demonstrative evidence at 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 was offered in evidence. State v. King, Nos. 60,732 and 60,733, 355 So.2d 1305 (La.1978); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. King, supra; State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the jury. State v. King, supra; State v. Hayes, 306 So.2d 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, supra; State v. Wright, 254 La. 521, 225 So.2d 201 (1969).

The testimony of Officer Steinkamp concerning the shotgun seized at Mitchell’s restaurant was part of the state’s foundation for introduction of the shotgun in evidence. At the time that Officer Steinkamp was questioned about the shotgun, the state made no effort to offer it in evidence. Hence, the mention of the shotgun were merely preliminary. The trial judge properly denied defendants’ motion for a mistrial because the court cannot control the state’s order of proof. La.Code Crim.P. art. 773; State v. Weathers, 320 So.2d 895 (La.1975); State v. Mitchell, 311 So.2d 888 (La.1975); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971).

The state subsequently completed the foundation for admission in evidence of the shotgun through the testimony of Le-pree and two police officers. Lepree testified that a shotgun was used during the armed robbery and also that the stolen jewelry was hidden at Mitchell’s restaurant. The officers testified that the photograph depicted jewelry and weapons seized at the restaurant. The shotgun is among those items depicted. Based upon the foregoing facts, we conclude that it was more probable than not that the shotgun was connected with the case.

We also consider that the proper foundation was laid for introduction of the photograph in evidence. It is a well-settled rule that a photograph need not be identified by the person who took it to be admissible in evidence. State v. Cass, 356 So.2d 936 (La.1977); State v. Vincent, 338 So.2d 1376 (La.1976); State v. Freetime, 334 So.2d 207 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975); State v. Browning, 290 So.2d 322 (La.1974). Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they tend to shed light upon the matter before the court. State v. Cass, supra; State v. Freetime, supra; State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). Sufficiency of identification of a photograph for purpose of admissibility thereof rests largely with the discretion of the trial judge. State v. Cass, supra; State v. Fox, 251 La. 464, 205 So.2d 42 (1967).

In the instant case, two police officers, who had assisted in the seizure of the evidence at Mitchell’s restaurant, testified that the photograph depicted the evidence seized. These officers had personal knowledge of the items seized. Thus, the state laid a proper foundation for admission in evidence of the photograph.

For the first time on appeal, defendants suggest in brief that the shotgun constituted inadmissible evidence relating to another crime. It is well settled that a new basis for an objection cannot be raised for the first time on appeal. State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976). In any event, having previously concluded that the shotgun was properly admitted in evidence as being connected with the instant case, there is no. merit to this contention.

Also for the first time on appeal, Mitchell contends that the shotgun was inadmissible in evidence because the state failed to mention it in answer to a motion for a bill of particulars requesting enumeration of the weapons allegedly used in the armed robbery. Once again, the well-settled rule is that a new basis for an objection cannot be raised for the first time on appeal. State v. Fowlkes, supra; State v. Williams, supra; State v. Marks, supra. In any event, we find no merit to Mitchell’s contention. When there is a variance between the bill of particulars and the evidence offered in support thereof, the court may order the bill of particulars amended in respect to the variance and then admit the evidence. La.Code Crim.P. art. 488. If it is shown, on a motion of the defendant, that he has been prejudiced in his defense on the merits by the variance with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. La.Code Crim.P. art. 489. No amendment of the bill of particulars was ordered in the instant case. However, failure to do so does not constitute reversible error in the absence of prejudice to defendant. State v. Russell, 352 So.2d 1289 (La.1977); State v. Champagne, 251 La. 849, 206 So.2d 518 (1968). We find no such prejudice here.

In sum, for the reasons assigned, the trial judge did not err in denying defendants’ motion for a mistrial and in admitting in evidence the shotgun, testimony concerning it, and the photograph depicting it. Therefore, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 9 (ROBERTSON)

Defendant Robertson contends the trial judge erred in curtailing his cross-examination of a state witness.

Bernard Sanders was charged with armed robbery in the same information with Robertson, Mitchell and Lepree. Prior to trial, the state entered a nolle prosequi as to the charge against Sanders. Lepree (co-participant in the crime) testified that Sanders was not one of the robbers. During trial, Lester L. Pailet testified as a state witness that he had identified Sanders at a pretrial lineup as one of the robbers. On cross-examination, he clearly admitted making a positive identification of Sanders as one of the perpetrators of the robbery. Upon being asked to describe Sanders, the trial judge ruled the question irrelevant at that time. Defense counsel stated that his inquiry was to “the weight of the ability of the witness ... to describe and identify persons.” He added, “He is attempting to identify persons in this case.” The trial judge maintained his previous ruling. After further cross-examination of Mr. Pailet concerning his identification of Sanders, the trial judge granted defense counsel’s request that Sanders be brought into the court room. Mr. Pailet admitted that he had previously identified this man (Sanders) as one of the robbers.

Robertson contends the trial judge’s refusal to permit Mr. Pailet to give a description of Sanders prevented him from impeaching the witness by showing his inability to accurately describe persons. The apparent purpose of the inquiry was to show Mr. Pailet’s inability to identify people by revealing the fact that he had positively identified Sanders as one of the robbers whereas the state had chosen not to prosecute him and Lepree testified that Sanders was not one of the robbers. The obvious implication of these facts would supposedly be that Mr. Pailet had identified one innocent man as a perpetrator of the robbery and, hence, his identification of Robertson could not be trusted. This implication was clearly presented to the jury. Therefore, Robertson accomplished his purpose. Under the circumstances, even assuming possible error in the ruling of the trial judge, the error was harmless. La. Code Crim.P. art. 921.

Assignment of Error No. 9 (Robertson) is without merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 16 (ROBERTSON)

ASSIGNMENTS OF ERROR NOS. 8, 9 AND 10 (MITCHELL)

Defendants contend the trial judge erred in requiring Robertson to be fingerprinted in the presence of the jury. They argue that the procedure was prejudicial in that it was inflammatory and cumulative in nature. They also contend the trial judge erred in admitting fingerprint identification evidence. They argue that this evidence was not within the scope of the state’s opening statement.

During trial, Officer Steinkamp identified an invoice as the one he found on the second floor of Pailet and Penedo ten days after the robbery. The invoice was dated March 7, 1975, the day before the robbery. Mr. Thomas R. Martin was qualified as an expert in the field of fingerprint identification. Defendants did not question his qualifications; in fact, they stipulated to his qualifications as an expert in said field. Mr. Martin identified a fingerprint card bearing Robertson’s name as one he had obtained from the latent fingerprint file in Washington, D.C. He compared a fingerprint on the invoice to the corresponding print on the card and opined that the two prints were made by the same finger. The trial judge granted the state’s request that Robertson submit to being fingerprinted in court. Defendants objected on the grounds that the procedure was unduly inflammatory and would be merely cumulative. The objection was overruled and Robertson submitted to the procedure. Mr. Martin compared the fingerprint taken in court to the print obtained from the invoice and opined that the two were made by the same finger. Subsequently, the various items used in the fingerprint comparisons were admitted in evidence over defendants’ objection on the ground that they were not within the scope of the state’s opening statement.

Identification of Robertson as one of the perpetrators of the robbery was a material issue in dispute; therefore, the fingerprint identification of Robertson was highly probative to place him at Pailet and Penedo jewelers. Since the fingerprint on the card obtained from the latent print files in Washington was not current and not clearly identified as being that of Robertson, the in-court fingerprint procedure was necessary to obtain a current fingerprint which undeniably was Robertson’s. Clearly, the probative value of the procedure outweighed any prejudicial effects. Hence, we find no merit to defendants’ contention that the trial judge erred in requiring Robertson to be fingerprinted in the presence of the jury.

Defendants’ contention that the fingerprint identification evidence was inadmissible as not being within the scope of the state’s opening statement is equally without merit. We note first that the record reveals no objection to the testimony of the expert witness concerning fingerprint identification. In the absence of a contemporaneous objection, an alleged irregularity or error in the proceeding cannot be availed of after verdict. La.Code Crim.P. art. 841; State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). In any event, we consider that the expert testimony and the various items used in the fingerprint comparisons were admissible. The state’s evidence need not be detailed in the opening statement. The statement’s primary function is to set forth in general terms the nature of the charge and of the evidence sufficiently to enable the jury to follow the proceedings and to inform the accused of what acts on his part the state intends to prove. La.Code Crim.P. arts. 766, 769; State v. Sneed, 316, So.2d 372 (La.1975). The trial judge did not err in admitting the fingerprint identification in evidence.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 15 (ROBERTSON)

Defendant Robertson contends the trial judge erred in admitting in evidence certain jewelry on the ground that the proper foundation had not been laid for its admission.

During trial, Lepree testified that jewelry was taken during the robbery and hidden at Mitchell’s restaurant. Two police officers testified that a photograph depicted jewelry and other items seized at the restaurant. Mr. Pailet identified the same photograph as depicting some of his jewelry that he had recognized at police headquarters as having been stolen during the robbery. Later, Officer Steinkamp testified that the envelope marked State Exhibit 16A contained smaller envelopes bearing his initials and containing some of the jewelry he had seized at the restaurant. He then described the contents of the envelopes and reiterated that he had seized this jewelry at the restaurant. Upon introduction of these items in evidence, Robertson objected on the ground that the proper foundation had not been laid for their admission.

Based upon the foregoing facts, we conclude that it was more probable than not that the jewelry was connected with the case. Hence, the trial judge did not err in admitting the jewelry in evidence. State v. King, Nos. 60,732 and 60,733, 355 So.2d 1305 (La.1978); State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976).

, Assignment of Error No. 15 (Robertson) is without merit.

ASSIGNMENT OF ERROR NO. 7 (MITCHELL)

Defendant Mitchell contends the trial judge erred in denying his pretrial motion requesting that he be furnished with a written copy of the state’s intended opening statement. We find no merit to this contention.

Louisiana Code of Criminal Procedure article 766, which sets forth the requirements of the state’s opening statement, does not require that it be submitted in written form. Moreover, the Official Revision Comment to articles 766 through 769 notes that several proposals were considered in preparation of the revision, in-eluding “serving the defendant with a copy of the state’s opening statement several days before trial . . . .” This proposal was not adopted. Hence, the trial judge did not err in denying Mitchell’s pretrial motion requesting that he be furnished with a written copy of the state’s intended opening statement.

Assignment of Error No. 7 (Mitchell) is without merit.

ASSIGNMENT OF ERROR NO. 13 (MITCHELL)

Defendant Mitchell contends the trial judge erred in allowing Mitchell himself, against the advice of trial counsel, to make the decision to withdraw a motion for a mistrial grounded on an allegation of jurors’ inattention.

During trial, but outside the presence of the jury, the trial judge stated that he had observed the inattention of two jurors during the testimony of a witness. Mr. Panze-ca, Mitchell’s trial counsel, stated that Mitchell had also informed him of the situation; and Mr. Panzeca moved for a mistrial. Robertson’s counsel informed the court that he had discussed the possibilities involved in the situation with his client and that Robertson did not wish a mistrial but wanted to proceed with the trial. The court asked Mr. Panzeca if he still persisted in his motion, and he informed the court that he was discussing the matter with Mitchell. After a short time, Mr. Panzeca stated:

Your Honor, my client has instructed me to move for a mistrial, Your Honor. And I do so move.
Your Honor, it becomes moot. My client has agreed to withdraw the motion. Withdraw it and proceed according to Your Honor’s instructions.

The court then proceeded to question Mitchell himself:

BY THE COURT:
You understand, now, Mr. Mitchell, you are waiving your right to raise this issue in the future as a result of your withdrawal, motion for withdrawal; is that understood by you?
BY MR. ARTHUR MITCHELL:
Yes, Your Honor.
BY THE COURT:
You understand, Mr. Panzeca is withdrawing the motion with your instructions and with your consent?
BY MR. ARTHUR MITCHELL:
Yes, sir.
BY THE COURT:

All right. The motion is withdrawn. Defendants’ rights were reserved to complain of any future misconduct on the part of the jury. On this appeal, Mitchell is represented by different counsel and assigns as error the withdrawal of the motion for a mistrial by Mitchell against the advice of his trial counsel.

There is no merit to this contention. The record clearly indicates that the motion for a mistrial was withdrawn with the concurrence of both Mitchell and his trial counsel. There is no indication in the record that Mr. Panzeca did not concur in this decision.

Assignment of Error No. 13 (Mitchell) is without merit.

DECREE

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

      . Bernard Sanders and Jesse Lepree were also charged in the same information for having committed the same offense. Prior to trial, the state entered a nolle prosequi as to the charge against Sanders. During trial, Lepree withdrew his former plea of not guilty and pled guilty to simple robbery (La.R.S. 14:65) with the consent of the state.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Clarence WILLIAMS.
    No. 60927.
    Supreme Court of Louisiana.
    April 10, 1978.

      Lyall G. Shiell, Jr., 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.
   DENNIS, Justice.

Defendant was charged with a violation of La.R.S. 14:95.1, possession of a firearm by one previously convicted of a felony. After conviction by a unanimous jury, defendant was charged under La.R.S. 15:529.1 as a multiple offender. He pleaded guilty to being a second offender and was sentenced to serve nineteen years and eleven months at hard labor. Defendant now appeals, relying upon four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial court erred when it denied his motion to quash the indictment based on the unconstitutionality of La.R.S. 14:95.1. Defendant attacks the statute on two fronts: first, he argues that 14:95.1 is an ex post facto law insofar as it premises increased penalties for carrying a concealed weapon upon a conviction which occurred prior to the enactment of the statute; second, he contends that 14:95.1 violates Article I, Section 20 of the Louisiana Constitution of 1974, since that section provides for restoration of “full rights of citizenship” upon termination of supervision following conviction of any offense.

In State v. Sepulvado, 342 So.2d 630 (La.1977), this Court discussed the definition of an ex post facto law:

“An ex post facto law, by definition, is one which is passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed. Black’s Law Dictionary 662 (Rev. 4th ed. 1968). See also La.Civil Code art. 8.
“Certain criteria for determining if a law is ex post facto have been established. The ex post facto prohibition comes into effect when a law makes an act criminal which was innocent when done and punishes such action; or aggravates a crime or makes it greater than when committed; or changes the punishment and inflicts a greater punishment than the law in effect when the crime was committed; or alters the rules of evidence to receive less or different testimony that the law required at the time the offense was committed in order to convict. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). A fifth category holds that any law is considered ex post facto which is enacted after the offense was committed and which alters the situation of the accused to his disadvantage. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882); Payne v. Nash, 327 F.2d 197 (8th Cir. 1964); State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962); 16A C.J.S. Constitutional Law §§ 440-46 (1956).” 342 So.2d at 635.

Although this court has never been directly confronted with a contention that La.R.S. 14:95.1 constitutes an ex post facto law with respect to convictions which occurred prior to the effective date of the statute, an analogous situation was presented in State v. Guidry, 169 La. 215, 124 So. 832 (1929). In that case, the defendant contended that Act 15 of 1928 was an unconstitutional ex post facto law because it provided for increased penalties for the second offense committed by an “habitual offender,” notwithstanding the fact that the act was passed after defendant was convicted of the initial offense which formed the basis for the increased sentence. This Court rejected the defendant’s argument, stating:

“ * * * ‘[A] law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for the first, and it has not been deemed objectionable that, in providing for such heavier penalties, the pri- or conviction authorized to be taken into the account may have taken place before the law was passed. In such case, it is the second or subsequent offense, that is punished, not the first.’ McDonald v. Mass., 180 U.S. page 311, 21 S.Ct. 389, 45 L.Ed. 542; State of Iowa ex rel. Gregory v. Jones, Warden (D.C.) 128 F. 626; Com. v. Graves, 155 Mass. 163, 29 N.E. page 579, 16 L.R.A. 256. See, also, In re Allen, 91 Ohio St. 315, 110 N.E. 535, 537; Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18.” 124 So. at 836.

Similar problems have also arisen with regard to the federal firearms act, which prohibits convicted felons from transporting or receiving firearms in interstate commerce. Faced with contentions that the act was unconstitutional as an ex post facto law as applied to one who was convicted of a felony prior to the passage of the act, the federal courts have rejected such arguments, noting that “[the Constitution] . does not prevent the regulation by Congress of conduct, which it has the power to regulate, even though subjection to the regulation depends upon behavior occurring before the enactment of the statute.” Smith v. United States, 312 F.2d 119, 121 (10th Cir. 1963). See also, Elliott v. Beto, 419 F.2d 128 (5th Cir. 1969); Lafave and Scott, Criminal Law, § 12 (1972); Annotation, 13 A.L.R.Fed. 103, 121.

We believe that a similar rationale is applicable in the instant case. The fact that the conduct proscribed by La.R.S. 14:95.1 is dependent upon the circumstance of an earlier conviction which, in the present case, occurred before the statute, does not impose a greater penalty for a crime which has already been committed. Rather, La.R.S. 14:95.1 prohibits specified future conduct, the carrying of a concealed weapon, and sets forth penalties to be exacted if such conduct occurs. The wording of the statute put the defendant on notice of the consequences of his contemplated act, and it did not become an ex post facto law because liability was premised upon a past conviction. Defendant’s first argument lacks merit.

Under his first assignment of error, defendant further argues that La.R.S. 14:95.1 is violative of Article I, § 20 of the Louisiana Constitution of 1974, in that Section 20 provides for restoration of full rights of citizenship after termination of supervision following conviction of any offense. Defendant contends that one of the rights of citizenship thereby granted is the right to keep and bear arms, and that the statutory provision is thus in contravention of the constitutional requirement.

In State v. Amos, 343 So.2d 166 (La.1977), an identical argument was advanced by the defendant and was rejected by this Court. Therein we stated:

“To be sure, La.R.S. 14:95.1 is addressed to persons who are citizens of this state by virtue of having terminated state and federal supervision following their convictions. La.Const. art. 1, § 20 (1974). These persons have, nonetheless, previously been convicted of serious criminal offenses; restoration of citizenship cannot erase this fact. The verbatim transcripts of the constitutional convention debates indicate that neither La. Const, art. 1, § 11 nor La.Const. art. 1, § 20 were ever intended to preclude the type of legislation disputed herein. We are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies. Courts of other states having statutes and constitutional provisions comparable to our own have similarly concluded that such regulation is constitutionally permissible as a reasonable and legitimate exercise of police power. People v. Blue, 544 P.2d 385 (Colo.1975); State v. Krantz, 24 Wash.2d 350, 164 P.2d 453 (1945); Akron v. Williams, 113 Ohio App. 293, 177 N.E.2d 802 (1960); 79 Am.Jur.2d Weapons § 24 (1975).
“For the foregoing reasons, we are satisfied that La.R.S. 14:95.1 does not imper-missibly contravene the rights guaranteed in La.Const. art. 1, § 11 (1974).” 343 So.2d at 168. (Footnote omitted.)

See also, State v. Sanders, 357 So.2d 492 (La.1978).

We find defendant’s first assignment of error to be unmeritorious.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these assignments, the defendant contends that the trial judge erred by allowing the State’s rebuttal argument to go beyond the scope of the defendant’s closing argument, and by refusing to correct the error by allowing the defense to make a surrebut-tal argument.

An examination of the transcript reveals that the prosecutor’s remarks were directed toward rebutting the defense attorney’s contention that the State had failed to prove its case beyond a reasonable doubt. Thus, the argument was properly within the scope of Louisiana Code of Criminal Procedure Article 774, which provides that “the state’s rebuttal shall be confined to answering the argument of the defendant.”

Further, we find without merit defendant’s contention that he should have been allowed to “rebut the state’s rebuttal.” Louisiana Code of Criminal Procedure Article 765 provides that the state shall have the last argument to the jury. Addressing this same issue in State v. Wiggins, 337 So.2d 1172, 1173 (La.1976), this Court stated:

“The defendant had no right, as here claimed, to make surrebuttal argument to the state’s closing rebuttal argument. La.C.Cr.P. art. 765(6). The defendant cites no legal authority in support of his contention that the statutory order of argument (state, defense, state rebuttal) provided by this article is unconstitutional.
“This is, in fact, the prevailing statutory order of argument in American jurisdictions. 5 Wharton’s Criminal Law & Procedure, Section 235 (Anderson ed., 1957). The Uniform Rules of Criminal Procedure, 521(7) (1974) (Natl. Conf. Comm’rs. Uniform State Laws), recommend that rebuttal and surrebuttal be authorized within the discretion of the court, but there is no intimation that the prevailing procedure offends any constitutional guarantee to a fair trial.”

Defendant’s assignments of error numbers four and five are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that he was improperly multiple-billed because La.R.S. 14:95.1 is unconstitutional under Article I, § 20 of the Louisiana Constitution of 1974, because he was denied a jury trial at the multiple bill hearing, and because the multiple bill procedure authorized by La.R.S. 15:529.1 is not applicable to a prosecution under La. R.S. 14:95.1

This Court has previously rejected arguments that La.R.S. 14:95.1 is in violation of Article I, § 20 of the Louisiana Constitution of 1974, State v. Amos, 343 So.2d 166 (La.1977), and that a defendant is entitled to a jury trial in a multiple offender proceeding under La.R.S. 15:529.1. State v. Williams, 326 So.2d 815 (La.1976).

There is merit, however, in defendant’s contention that a conviction of violation of the firearms statute, which is itself a recidivist law, may not be used to have one adjudged to be an habitual offender. In State v. Sanders, 337 So.2d 1131 (La.1976), this Court held such an application to be contrary to the legislative intent, stating:

“The firearms statute at issue here, R.S. 14:95.1, was enacted in 1975 and, as previously explained, provides that possession or concealment of a weapon by a person who has previously been convicted of one of the offenses therein enumerated is a felon, and that punishment therefor is confinement for three to ten years. Under the statute it is not the possession or concealment of a weapon — standing alone — which is a felony. It is made a felony only when the person committing the act has previously been convicted of one of the enumerated offenses. The act of possessing or concealing becomes a felony only because the person has the status of convicted felon. Consequently, the legislature has itself imposed an increased penalty on a possessor or concea-lor of a weapon, if he is a felon, by means of this legislation specially aimed toward the convicted felon. We assume that the legislature was prompted to make this change because a person multiple-billed after conviction under the original statute, R.S. 14:95, could usually be given only a very short sentence. Since the legislature in passing R.S. 14:95.1 has in that very statute provided enhanced penalties for the act of concealing a weapon when the concealor is a felon, we therefore presume that it must not have intended the multiple enhancement incident to the state’s using R.S. 15:529.1 to further enhance the penalty.” 337 So.2d at 1134. (Footnotes omitted.)

Accordingly, the trial court in the instant case erred in failing to quash the multiple offender bill of information. Therefore, the conviction of the defendant is affirmed, but the sentence is vacated and the case is remanded for sentencing pursuant to the views expressed in this opinion.

      18 U.S.C. § 922 (formerly 15 U.S.C. § 902).


text:
    In the Matter of Wilford D. CARTER.
    No. 61443.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   In re: Wilford D. Carter, applying for writs of certiorari, prohibition or mandamus. Parish of Calcasieu. 357 So.2d 1175.

Writ denied. The contempt adjudication does not purport to prevent the relator from practicing before Division “F”. We find no error in the proceedings adjudicating the relator to have committed a direct contempt. However, the relator’s motion for a stay within which to apply to the United States Supreme Court is granted and execution of the sentence is stayed for 60 days for that purpose.

DIXON and DENNIS, JJ., would grant. The judge who was recused in chambers, should have recused himself from the trial on contempt.

CALOGERO, J., would grant on the recu-sal issue.


text:
    In the Matter of Wilford D. CARTER.
    No. 61720.
    Supreme Court of Louisiana.
    March 7, 1978.
   In re: Wilford D. Carter applying for writ of mandamus. Parish of Calcasieu. 357 So.2d 1175.

Writ refused. In view of the response of the trial judge, that he will permit the relator to practice in his courtroom without interference, this application is moot.

SUMMERS, J., concurs in the denial on the ground that, in view of the response of the trial judge, the matter is moot.

DIXON, CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted and the district judge ordered to permit applicant to appear and practice law in his division of court.


text:
    Devon A. KELLY, Jr. v. VILLAGE OF GREENWOOD et al.
    No. 61649.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Village of Greenwood, etc., et al applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 357 So.2d 1182.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Fausta Cecile DEVALL v. Claude Pierson DEVALL.
    No. 62069.
    Supreme Court of Louisiana.
    May 12, 1978.
    Writ Recalled July 14, 1978.
    See 360 So.2d 522.
   In re: Claude Pierson Devall applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen. 357 So.2d 899.

Granted. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Theotis Fontenot LEJEUNE et al. v. ALLSTATE INSURANCE COMPANY et al. Danny LaFLEUR v. Randall MOLITOR et al.
    No. 62173.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Danny LaFleur, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 356 So.2d 537, 356 So. 550.

Not considered. Not timely.


text:
    Joseph L. SMITH v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY.
    No. 62182.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Joseph L. Smith, applying for cer-tiorari, or writ of review, and stay order, to the Court of Appeal, Third Circuit. Parish of Avoyelles.

Granted. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    FRANKLIN PRINTING CO., INC. v. Richard H. COLLIN et al.
    No. 62241.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Richard H. Collin, Michael A. Le-det, and 2-Plus Graphic Coordinators, Inc. applying for supervisory or remedial writs. Parish of Orleans. Civil District Court.

Writ denied.


text:
    In re Interdiction of Edna Lacroix, Widow of Walter F. POYNOT.
    No. 62213.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: William M. Duett, Co-curator for the Interdict Edna Lacroix Poynot, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.


text:
    Noelie M. HOTARD. v. Richard R. HOTARD.
    No. 62183.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Richard R. Hotard, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 357 So.2d 52.

Writ denied.


text:
    Tommie B. McKEE v. LIBERTY MUTUAL et al.
    No. 62180.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Tommie B. McKee, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita.

Denied.


text:
    Mrs. Joseph D. BOUDREAUX et al. v. George A. CASANOVA et al.
    No. 62179.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Mrs. Joseph Boudreaux, Individually and as natural tutrix of her two minor children applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Acadia.

Writ denied.


text:
    Joe WILLIAMS v. WINSTON INDUSTRIES, INC., et al.
    No. 62171.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Winston Industries, Inc. and Travelers Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 350 So.2d 1318.

Denied.


text:
    PAUL M. DAVISON PETROLEUM PRODUCTS v. L. T. BROWN, CONTRACTOR, INC., et al.
    No. 62169.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Hartford Accident & Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Webster. 356 So.2d 572.

Writ denied.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. SHERIFF, BOSSIER PARISH, Benton, Louisiana.
    No. 62168.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: McArthur Johnson, applying for writ of review.

Denied.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 62167.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Larry Joe Phillips, applying for writ of review. Parish of Orleans.

Writ denied.