text:
    STATE of Louisiana v. Raymond PORTER et al.
    No. 58860.
    Supreme Court of Louisiana.
    April 11, 1977.

      Barry Viosca, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Raymond Porter along with his sister Dorothy Porter, and his brother Lawrence Porter, were charged with possessing heroin on December 20, 1974. The three were tried together; Raymond Porter was found guilty as charged and both Dorothy and Lawrence Porter were found guilty of attempted possession of heroin. Dorothy Porter withdrew her motion for appeal and Lawrence Porter’s motion for new trial was granted. Therefore, only Raymond Porter, who was sentenced to serve ten years at hard labor, is before us now on this appeal.

ASSIGNMENT OF ERROR NO. 1.

Defendant complains that the trial judge mistakenly refused to grant his motion to suppress the evidence seized from his home which was taken during a search made pursuant to a warrant. Defendant alleges first that the affidavit does not include facts on which a magistrate could find that there was probable cause for the search and, secondly, he argues that the issuing magistrate had no authority to issue the warrant.

In the affidavit supporting the search warrant for the search of 3150 North Ro-cheblave, Officer Frank Ben swore that on December 5, 1974 he had received a telephone call from a reliable confidential informant whose information had led to the arrest and conviction of numerous drug distributors in the past. The informant told him that Lawrence Porter (appellant’s brother and codefendant at trial) was selling heroin at that time, had sold him some heroin shortly before, and had entered the house at 3150 North Rocheblave Street during the transaction. The officer immediately set up a surveillance near the Roche-blave Street address and observed Lawrence Porter enter the address, then reappear and hand something to each of five persons standing in a group near the house. Lawrence was seen entering and exiting the house several other times, talking to various people, and being driven around in a car. Three days later, Officer Ben received a second telephone call from a reliable confidential informant whose information had led in the past to drug arrests. He stated that Lawrence and Raymond Porter were selling large amounts of heroin which was being stored at a white double house on North Rocheblave Street near the corner of Louisa Street. Another surveillance was instituted and the officers observed a person Officer Ben had previously arrested for selling heroin enter the residence and exit carrying a paper bag.

Defendant argues that this affidavit does not reveal sufficient facts on which a magistrate could reasonably make a finding that there was probable cause to believe that Raymond Porter was involved in criminal activity because the details in the affidavit dealt primarily with the activity of Lawrence Porter, not Lawrence’s brother, the appellant Raymond Porter. We do not agree.

An affidavit supporting a search warrant need not establish probable cause as to each person who lives in a house. Instead, the affidavit must inform the issuing magistrate of those facts upon which he can reasonably decide that evidence of a crime is presently on the premises to be searched. State v. Paciera, 290 So.2d 681 (La.1974). This affidavit does contain facts on which a magistrate could reasonably conclude that the house at 3150 North Ro-cheblave Street contained narcotics.

Defendant also contends that the magistrate who signed the warrant was not legally authorized to do so. Actually, it was Commissioner Gerard Hansen of the Criminal District Court for the Parish of Orleans who signed the warrant.

Defendant’s argument is that Article 161 of the Code of Criminal Procedure provides only that a “judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which: (3) may constitute evidence tending to prove the commission of an offense.” (emphasis added)

Louisiana Revised Statute 13:1347 created three offices of commissioner of the criminal district court for the parish of Orleans. That section provides that the persons appointed to these offices shall be known as commissioners and “shall not be judges, but shall have the same qualifications, powers, duties, jurisdiction, and functions, all as is now or hereafter provided for the judge in the magistrate section of said criminal district court.” Louisiana Revised Statute 13:1346 creating the magistrate section of the criminal district court for the parish of Orleans (and the additional judge in the criminal district court who shall be known as said magistrate) specifically grants the judge in the magistrate section the authority to “sign and issue search and arrest warrants upon probable cause being shown in accordance with law.” R.S. 13:1346(D). Since one of the powers and functions specifically granted to the judge of the magistrate section is the authority to issue search warrants, a commissioner of that section, by virtue of the provisions in R.S. 13:1347 referred to hereinabove, likewise has that authority.

Because the warrant to search the North Rocheblave Street residence was issued by a person authorized to do so, and because that warrant was based upon probable cause, the assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 and 8.

Defendant complains that the court erred in allowing Criminologist Sisón to testify as to state exhibits one through eight and in admitting these exhibits into evidence on the basis that these items were not mentioned in the state’s opening statement and were not relevant to the case. These exhibits included a single burnt cap containing a small amount of residue tested negative for heroin as well as certain narcotics paraphernalia including coin envelopes containing numerous pieces of foil, bags containing hypodermic syringes, needles and needle guards, and a box of glassine envelopes. As we understand defendant’s complaint, he does not object to the introduction of the two burnt caps which did contain heroin residue (exhibit number one apparently included these two caps and the one which tested negative for heroin), but he does believe that the court erred in admitting the narcotics paraphernalia and the third cap which contained no heroin.

In its opening statement, the state announced that:

“The State is going to call Officer Howard Johnson to the stand, and he is going to testify that he found three caps, three burnt caps, containing a residue. He is going to testify that he found these caps outside the residence of 3150 North Ro-cheblave on top of a little shed in the back of that address. You’re also going to hear various testimony from these police officers as to other evidence found in connection with this case, both inside and outside of the residence.”

Although the defendant admits that the state is not required in its opening statement to detail every bit of its evidence, he contends that the above-quoted reference to “other evidence” does not meet the standards for adequacy set forth in the jurisprudence or the state statutes. He argues that, because this other evidence was very damaging and prejudicial to his case, it should have been set out in detail in the opening statement.

This argument is without merit. Article 766 of the Code of Criminal Procedure states that “The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.” (emphasis added) This requirement does not mean that all evidence must be given in minute detail. State v. Brown, 288 So.2d 339 (La.1974). The narcotics paraphernalia was closely related to the heroin residue in the burnt caps, evidence that was described in detail in the opening statement. The state’s reference to “other evidence” was broad enough to properly include other evidence which tended to establish that defendant knew that the substance he possessed was heroin.

As for defendant’s claim that the narcotics paraphernalia was not relevant to the charge of possession of heroin, this argument likewise has no merit. In a trial on the charge of possession of heroin, the possession of the equipment commonly used to store and administer the drug is admissible to prove that the defendant knowingly and intentionally possessed the unlawful substance. State v. Thomas, 329 So.2d 704 (La.1976). This evidence was properly admitted into evidence at the trial.

ASSIGNMENTS OF ERROR NOS. 3 and 4.

Assignment number three was taken when a state witness was allowed to testify, over defendant’s objection, that he saw “hundreds of small pieces” of tin foil scattered inside the defendant’s house and in the back yard, some of which were seized and introduced into evidence. Assignment number four was taken when the court allowed, again over defendant’s objection, Detective Ben to testify that he had “observed, during the investigation, Lawrence Porter [defendant’s brother and a co-defendant] meet with several persons who are known to me as addicts.” Defendant argues in brief that the foregoing testimony tended to imply that defendant Raymond Porter was a seller of heroin, not merely a possessor of heroin, the charge for which he was being tried, and that this implication gravely prejudiced his case.

As the state correctly points out, this argument is being made by defendant for the first time on this appeal. When the complained-of reference to the pieces of tin foil was made, defense counsel objected to any reference to unseized items; when the reference to Lawrence’s meeting with addicts was made, counsel’s objection was made because the meeting had “nothing to do with the date of the offense where this was found.”

Article 841 of the Code of Criminal Procedure requires that a party make known to the trial judge his objection to the action of the court and his grounds for that objection. A new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976) and the cases cited therein. Had the defense counsel contended that he felt these two pieces of testimony prejudiced his client because they implied that defendant sold heroin, the trial judge could have considered the objection to this testimony in that light. As it was, the trial judge was not made aware of the defendant’s feeling that the two bits of testimony prejudiced him for this very different reason. Defendant did not therefore properly preserve the issue for our review. C.Cr.P. art. 841. Nonetheless, we have reviewed the merits of this assignment and find that the trial judge made no error when he overruled defendant’s objections to this testimony.

ASSIGNMENT OF ERROR NO. 5.

When the court allowed the introduction, over defendant’s objection, of various written materials seized from defendant’s residence, this assignment of error was taken. Specifically, these items were two savings account books and a California driver’s license in the name of Lawrence Porter and a letter addressed to him at the North Rocheblave Street address, as well as cards bearing Dorothy Porter’s name and a letter addressed to her at the same address. Defendant takes the position that these items were inadmissible hearsay and as such could not properly have been introduced into evidence.

Initially we note that none of these items bore the name of Raymond Porter, the only defendant now on appeal. Clearly the items were introduced by the state to tie defendants Lawrence and Dorothy Porter to the house so as to establish that they were guilty of constructive possession of the heroin found in the two burnt caps on the roof of the rear shed. Consequently, we cannot understand how the introduction of this material could have prejudiced this defendant.

Additionally, we find that the exhibits were offered not to prove the truth of their content but rather to link two of the defendants to the premises where the contraband was discovered. Thus the evidence was not hearsay because it was not introduced to establish the truth of its contents. State v. Roche, 341 So.2d 348 (La.1976); State v. Monk, 315 So.2d 727 (La.1975). This assignment is without merit.

ASSIGNMENTS OP ERROR NOS. 6 and 7.

Defendant complains that Detective Ben was allowed to testify, over his objection, about track marks and narcotics paraphernalia and to examine him before the jury for track marks.

Officer Ben was qualified as an expert in the field of narcotics and was authorized by the trial judge to give his opinion relative to the identification of marks on the skin caused by the use of narcotics. At the state’s suggestion and over defendant’s objection, the officer examined defendant-appellant (and his two co-defendants) and testified that Raymond Porter had no active needle marks but had several inactive marks on his arms and hands, marks that were from three to six months old.

Defendant relies on this Court’s opinion in State v. Pierre, 302 So.2d 10 (La.1974) in which we held that, in order for testimony as to a defendant’s track marks to be relevant at his trial for possession of heroin, the marks must be tied down to the time of the illegal act. There we found that because the only evidence of heroin possession was a slight residue of a substance in a bottle cap, the state could introduce evidence of track marks, inactive at time of trial, which were likely to have existed prior to the date of the arrest so as to establish that the defendant knew the substance he possessed was heroin. In the case now before us, the evidence of possession was, as it was in Pierre, slight: only a small amount of heroin was found in two burnt bottle.caps on the roof of a rear shed, a fact which made guilty knowledge a particularly serious issue at the trial. Defendant was charged with possessing heroin on December 20, 1974; Officer Ben’s testimony was heard by the jury on April 21, 1975, approximately four months later. The Officer testified that the tracks were inactive and were “approximately three to four months old, maybe a little older, give or take a month. They could be six months.” We find that the officer’s testimony that defendant’s track marks at trial were approximately three to six months old sufficiently tied the track marks to the illegal act (possession some four months before trial) so as to make them relevant as tending to prove that defendant knew that he possessed heroin.

This argument lacks merit.

ASSIGNMENT OF ERROR NO. 9.

Defendant complains that the trial judge improperly refused to grant his motion for a severance. The motion was made after Officer Giangrosso was asked whether at the time he arrested Raymond Porter, the defendant had told him anything about the other co-defendants. The court overruled the motion and then the witness replied as follows:

“As I was completing telling the subjects of their rights, Raymond Porter stated that, ‘You found the stuff on the shed, is that the stuff you found?’ I said, I didn’t tell him what I found. He said the stuff on the shed is what he was using to bunk people. It was bad stuff. And the hypodermic needles on top of the shed were his also, and nobody else knew about it.”

It was defendant Lawrence Porter’s attorney who objected and moved for a severance; defendant-appellant Raymond Porter’s attorney did not object before or after the statement, nor did he move for a severance.

Although there had been an agreement at the inception of the trial that an objection by one defense attorney would be seen as an objection from each one, we do not think that a motion for severance on behalf of defendant Lawrence Porter could have been understood by the trial judge to constitute such a motion on behalf of Raymond Porter. Even assuming, however, that we were to construe the motion for severance as having been made on behalf of Raymond Porter, we would find no error in the trial court’s ruling denying the motion.

Article 704 of the Code of Criminal Procedure provides for severance of co-defendants on motion of a defendant should justice require a severance. Since the testimony was exculpatory in nature in relation to co-defendants Dorothy and Lawrence Porter, they were not due a severance. See State v. Vale, 252 La. 1056, 215 So.2d 811 (1968). Appellant Raymond Porter incriminated himself by the admission to the officer, of course. But that admission would have been admissible against him in a severed trial just as it was in this joint trial. Therefore, appellant had no grounds for a severance under these circumstances. The ruling of the trial judge was correct and the assignment accordingly lacks merit.

For the reasons assigned, the conviction and sentence of defendant Raymond Porter are affirmed.

      . Apparently Lawrence Porter is now deceased.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Wallace JONES.
    No. 58862.
    Supreme Court of Louisiana.
    April 11, 1977.

      Ronald L. Myers, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Wallace Jones was charged by bill of information with the crime of simple burglary in violation of La.R.S. 14:62. After trial by jury, defendant was found guilty as charged. After a hearing on an information filed by the district attorney accusing defendant of being an habitual offender, the trial judge found defendant to be an habitual offender and sentenced him to serve eight years at hard labor. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence. The assigned error relates to the trial judge’s denial of his motion for a new trial.

At the hearing on defendant’s motion for a new trial, his cousin, Clarence Butler, claimed that on the night in question, he borrowed defendant’s car and went for a ride with another man known to him only by nickname “Redbone,” He testified that, after abandoning defendant’s car near South Terrebonne High School, he and “Redbone” had broken into the structure. Butler further testified that defendant was not involved in the burglary. Earnest Vicknair, a jailer for the sheriff’s office, also testified at the hearing and reported that he overheard Butler relate this version of the incident to defendant during a visit to the jail. Finally, a friend of defendant, Melvin Navarre, claimed that defendant had asked him to help move the car abandoned by Butler on the night of the offense.

La. Code Crim.P. art. 851(3) dictates that the court on motion of defendant shall grant a new trial whenever:

(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

This court has consistently held that a motion for a new trial is properly rejected where the new evidence is of a nature that it should have been discovered before or during trial. State v. Brown, 338 So.2d 686 (La.1976); State v. Rossi, 273 So.2d 265 (La.1973). With respect to the newly offered testimony of Melvin Navarre, defendant’s motion does not meet this test. Defendant was obviously in a position to know that he had asked Navarre for help with the abandoned ear. Navarre testified at the new trial hearing that he was available to testify at the trial on the merits but had not been subpoenaed.

Alleged newly discovered evidence must also be such that it would probably have changed the verdict of guilty. The test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Brown, supra; State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). Neither the appellate nor supervisory jurisdiction of this court may be invoked to review the granting or the refusal to grant a new trial, except for error of law. La.Code Crim.P. art. 858 (1966). State v. Credeur, 328 So.2d 59 (La.1976); State v. Porter, 330 So.2d 281 (La.1976). It is well established in our jurisprudence that the decision on a motion for a new trial rests within the sound discretion of the trial judge who is accorded considerable latitude in evaluating the reliability of testimony and its potential impact on the verdict. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Robinson, 337 So.2d 1168 (La.1976); State v. Russell, 334 So.2d 398 (La.1976).

In the instant case, the testimony of Clarence Butler at the new trial hearing was contrary to his previous testimony at trial on the merits. At trial, this witness maintained that he knew nothing about the area where the crime was committed and that he had been alone on the night of the offense. Moreover, the individual identified only as “Redbone” could not be located, although the state attempted to do so during a recess granted by the trial judge at the state’s request.

At trial, Officer Douglas Chauvin testified that, while on patrol on the night in question, he observed two black males inside a glass double door entrance to South Terrebonne High School. The two men were located in a well-lighted hallway. As the officer approached, one of the subjects who was dressed in a green shirt turned and looked at him. Officer Chauvin positively identified this subject at trial as defendant, Wallace Jones. He also identified the green shirt recovered from defendant at the time of his arrest (four hours later) as the same shirt he was wearing when observed inside the high school. He further testified that, when defendant was interrogated concerning why his car was found in the area, he claimed that it had broken down there and he had pushed it off the road. Personal effects in defendant’s possession when apprehended were wet, consistent with the marshy conditions prevalent around the burglarized structure through which the suspects made good their escape from the police. The trial judge noted in his per curiam to this assignment of error that Clarence Butler’s testimony at the new trial hearing was “unbelievable” and not worthy of being “trusted.” Moreover, he observed that evidence that Butler was one of the two men who burglarized the high school would not preclude defendant’s guilt as the other perpetrator of the offense, particularly in view of Officer Chauvin’s eyewitness identification of defendant.

It was clearly within the discretion of the trial judge to evaluate the reliability of the newly-offered exculpatory testimony and its impact on the verdict. In view of the evidence offered against defendant at trial and Butler’s own prior inconsistent statements, we are satisfied that the trial judge did not abuse his discretion in determining that the alleged newly-discovered evidence in this case did not meet the requisite standard of probability of changing the verdict. Accordingly, we find no error in the ruling of the trial judge denying defendant’s motion for a new trial.

DECREE

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


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Jimmy FRANK.
    No. 58872.
    Supreme Court of Louisiana.
    April 11, 1977.

      Alex L. Andrus, III, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   SANDERS, Chief Justice.

The State charged the defendant, Jimmy Frank, with the armed robbery of Linda Gail Young, a violation of LSA-R.S. 14:64. A jury found him guilty as charged. He received thirty-three years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.

The defendant appeals. He relies on four assignments of error for reversal of his conviction and sentence. Assignment of Error No. 4 is considered abandoned as it was neither briefed nor argued. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

The following are the facts leading to the defendant’s arrest:

One Sunday night at 8:50 p.m., Linda Gail Young and Lois Smith, employees of Kajun Kitchen, an Opelousas restaurant, observed a black male enter the establishment. He had a moustache and goatee. The man wore a dark knit cap, large sunglasses, and an oversized dark striped sport-coat. He walked to the cigarette machine, into the dining room, back to the cigarette machine, and then to the telephone. Young inquired if she could help him, but he shook his head. Then he approached the counter, pulled a gun on Young, and demanded money. She gave him one twenty dollar bill, three fives, and some ones. After taking the money, he left.

The police saw the defendant six or seven blocks from the Kajun Kitchen at 9:02 p.m. They recognized him by the description given over the police radio. He was running and at the same time changing clothes. When they stopped the defendant, he wore a shirt and carried another shirt and a black and green striped sportcoat in his hand. A search of the defendant produced a blue knit cap, sunglasses, one twenty dollar bill, three fives, and nine ones. He did not have a gun. The police immediately arrested him.

ASSIGNMENT OF ERROR NO. 1

The defendant timely filed the following motion to suppress:

“The testimony of Linda Young, a state witness, be suppressed at the trial of this matter, on the grounds that her identification of the defendant at a pre-indictment show-up was the subject of constitutionally impermissible suggestion and abusive procedures, and that all of her future recollections relating to the identification were tainted and accordingly, inadmissible.”

Minutes after the officers arrested the defendant, they brought him to the Kajun Kitchen. Young, the victim, was unable to initially identify him. The officers then requested that she leave the room. They dressed the defendant with the knit cap, striped coat, and sunglasses found on him. When she next viewed the defendant so attired, Young hesitantly identified him as the robber.

The defendant objects to the single suspect identification and the police’s dressing him in the clothes found in his possession at arrest. His counsel contends “that this confrontation, while in police custody, was so suggestive that it effectively denied the defendant due process of law.”

During the hearing on the motion to suppress, Young picked out the clean shaven defendant as the robber while he sat among a group of black males. (The robber wore a moustache and a goatee.) At trial, she identified the defendant as the man she chose as the robber at the previous hearing. Each time Young identified the defendant, she expressed some doubt.

To determine whether this identification procedure is impermissibly suggestive and, therefore, violative of due process, we must look to the totality of circumstances. State v. Rhodes, La., 308 So.2d 770 (1975); State v. Melton, La., 296 So.2d 280 (1974) and the cases cited therein.

The law does not favor one-on-one confrontations between the victim and a suspect. However, they are permissible when the police apprehend a suspect within a relatively short time after the crime and bring him to the scene for an on-the-spot identification. This immediate confrontation assures the reliability of the identification as the perpetrator’s appearance is fresh in the witness’s mind, lessens the possibility that the perpetrator will change his clothes or appearance, and insures the early release of innocent subjects. State v. Lee, La., 340 So.2d 1339 (1976); State v. Maduell, La., 326 So.2d 820 (1976); State v. Newman, La., 283 So.2d 756 (1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d 489 (1974); State v. Bland, 260 La. 153, 255 So.2d 723 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971).

The defendant does not point to, nor do we find, any specific instance of impermissible police suggestion.

In State v. Jackson, La., 337 So.2d 508 (1976), we affirmed an armed robbery conviction in which an on-the-scene confrontation was similar to the one at bar. Although the robber wore a scarf to hide his face, the victim caught a glimpse of his face at close range. Less than fifteen minutes after the robbery the police apprehended the defendant and immediately brought him to the scene. Both the victim and a witness identified the defendant as the robber. We stated that when a witness makes an identification voluntarily and without any impermissible police suggestion, the fact that the police holds a mask to the defendant’s face after the identification is made does not ex post facto taint the identification. Similarly, we conclude that the police’s dressing the defendant prior to submitting him for identification does not invalidate the identification made in this instance. The totality of the circumstances dictates this result. Moreover, police act within constitutional bounds when they attire a suspect in clothes similar to those worn by the perpetrator for the purpose of identification. See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); U.S. v. Wilcox, 507 F.2d 364 (4th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975).

Thus, we find the motion to suppress properly denied.

However, assuming that the one-on-one confrontation was tainted, the in-court identification was properly admitted if it has a source independent of the out-of-court identification. In this determination, three factors are relevant: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during, and after the commission of the offense; (3) the circumstances under which the observation was made, i.e., the illumination at the scene, the witness’s physical capacities, and the witness’s emotional state at the time of the observation. State v. Fortenberry, La., 307 So.2d 296 (1975); State v. Moseley, La., 284 So.2d 749 (1973); State v. Newman, supra.

The victim did not know the defendant prior to the robbery. She observed the robber enter Kajun Kitchen and walk around for several minutes before he approached her. She spoke to him, his response was a nod of the head. She had an unobstructed view of the robber at all times. When he stood at the counter, he was only IV2 feet from her. She testified that although she was afraid when he pointed the gun at her, she did get a good look at him. The entire room was well lit. There is no evidence that Young suffered from impaired vision.

We are convinced that the in-court identification had a source independent of the out-of-court confrontation.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

The defendant alleges that the Assistant District Attorney commented on his failure to testify. Based on this contention, the defendant moved for a mistrial and a new trial. The trial court denied both. He assigns these rulings as error.

In his closing argument the prosecutor stated:

“. . . The next aspect of this case I think that we have to consider very seriously, is that the defendant’s defense in this case is an alibi, and the judge is going to explain to you that an alibi, just like any other specie of evidence, must be proven and must be believable. Can we believe the defendant’s alibi that he was at the Airline Bar at the time this allegedly took place, and that the money he had on him was to pay a bill to Audrey Williams for car repairs. Audrey Williams told you that the defendant owed him $42.90 for repairs that he had done on the defendant’s car one week before. Of course, now, the defendant, as I appreciate it, has been trying to convey to you that the automobile stopped because it was popping. It wasn’t running well. But Audrey Williams told you that he completely timed this car, timing gear, points and plugs, the whole thing, and that the car was running well, and that when the defendant called him on a Saturday — the robbery takes place on a Sunday — he made no complaints about his car running bad. Contrary, the car was running good. The officers proved that when they cranked the ear over at the station. What does the defendant tell Audrey Williams on Saturday? T don’t have the money to pay you now, but I’ll have it Monday.’ I don’t have it now, but I’ll have it Monday. Up until that point in the case, there was no real motive for this robbery, but now the defendant, with one of his witnesses, injects a motive. He has got to have $42.90 by Monday. I don’t have it on Saturday, but I’ll have it by Monday. When he’s caught, he’s got it. We know he doesn’t have it Saturday, but when he’s caught on Sunday night, he had it. Well, now what explanation does he have for that? He doesn’t tell us where he gets the money with Willie Aaron—” [Emphasis supplied.] (Tr. pp. 185-6)

The defendant moved for a mistrial pursuant to Louisiana Code of Criminal Procedure Article 770(3), which provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense;”

We have consistently held that, to constitute reversible error under this provision, the inference must be plain that the remark was intended to bring to the jury’s attention the failure of the defendant to testify. State v. Reed, La., 284 So.2d 574 (1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972); State v. Bentley, 219 La. 893, 54 So.2d 137 (1951).

Willie Aaron saw the defendant on the morning of the robbery. He testified that the defendant showed him several bills (some fives and some ones) with which he was to pay his auto mechanic, Williams. At trial, defense counsel attempted to negate any motive for the robbery by showing that the defendant had money to pay Williams.

As is evident from the language used, the Assistant District Attorney referred to Aaron’s failure to explain the source of the defendant’s money. The argument made no reference to the defendant. Thus, the trial judge properly denied the defense’s motion for a mistrial.

Likewise, we hold that the denial of the motion for a new trial was correct.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5

A joint stipulation made by counsel and accepted by the trial judge describes the facts of this assignment of error. It reads in pertinent part:

“1. Before the trial, at a pre-trial conference, attended by the presiding Judge, Assistant District Attorney ., and defense attorney . held in chambers, the prosecution systematically presented the factual merits of this case against the defendant to the Judge, together with the pertinent criminal history of the defendant (rap sheet), and, after due consideration, the presiding Judge proposed to the defense attorney that a sentence of twenty years would be imposed in exchange for a plea of guilty. The defendant elected to pretermit a guilty plea and exercised his right to the trial.
“2. A trial by Jury was conducted on April 24, 1975, and April 25, 1975. During the course of the trial, at a recess, the defense attorney, in the presence of the Assistant District Attorney, in Chambers, requested the presiding Judge to propose a prospective sentence in exchange for a guilty plea at that time. The presiding Judge again proposed a sentence of twenty years, and the defendant elected to continue his right to a trial.
“3. On May 2, 1975, the defendant was sentenced in open Court by the presiding Judge to thirty-three years at hard labor without benefit of parole, probation, or suspension of sentence, whereupon the defense attorney objected to the imposition of sentence in excess of twenty years in that it was a denial of the right to due process under the Fourteenth Amendment to the United States Constitution. The defense attorney at that time requested an evidentiary hearing to perpetuate the facts above recited. However, the Court then took judicial notice of the facts, after consultation with counsel, and the motion for an evidentiary hearing was withdrawn.”

The defendant contends that the judge’s imposition of a greater sentence after trial than that which he proposed at the plea bargaining discussions violates due process, as the greater sentence penalized him for exercising his constitutional right to trial by jury.

Our jurisprudence consistently holds that a sentence within the statutory limits is generally not subject to judicial review. State v. Butler, La., 302 So.2d 585 (1974); State v. Pierson, La., 296 So.2d 324 (1974); State v. Polk, 258 La. 738, 247 So.2d 853 (1971). Armed robbery has a maximum sentence of ninety-nine years imprisonment. LSA-R.S. 14:64(B). Hence, the sentence imposed is well within the statutory limits.

Assuming arguendo, however, that the due process complaint is reviewable, we find no merit in it.

A sentence has three general objectives: deterrence, rehabilitation, and public protection. Council of Judges of the National Council on Crime & Delinquency, Guides for Sentencing, p. 6 (2d ed. 1974). In determining the sentence, the judge must consider numerous factors. That the defendant has pleaded guilty is one of them. It is constitutionally permissible for the court to grant sentence concessions to a defendant who pleads guilty. The trial judge, of course, must determine when such a concession is in the public interest.

The American Bar Association Standards, Pleas of Guilty, § 1.8, sets forth the appropriate considerations as follows:

“(a) It is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty or nolo contendere when the interest of the public in the effective administration of criminal justice would thereby be served. Among the considerations which are appropriate in determining this question are:
(i) that the defendant by his plea has aided in ensuring the prompt and certain application of correctional measures to him;
(ii) that the defendant has acknowledged his guilt and shown a willingness to assume responsibility for his conduct;
(iii) that the concessions will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterre :t or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
(iv) that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
(v) that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;
(vi) that the defendant by his plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.
“(b) The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere.”

Although the trial judge in the present case is opposed to plea bargaining in principle, his sentence Per Curiam demonstrates that he is familiar with the appropriate considerations and took them into account when consulted concerning the guilty plea.

As paragraph (b) makes clear, if the defendant elects to go to trial, no sentence should be imposed that exceeds that justified by the rehabilitative, protective, deterrent and other purposes of the criminal law. Stated differently, the justified sentence should not be increased because of vindictiveness arising from the exercise of defendant’s right to stand trial. See United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976).

In his Per Curiam the trial judge noted the following factors which influenced his determination of the sentence: the defendant’s courtroom attitude, the seriousness of the crime of armed robbery, the risk of repetition, the threat to human life, and the legislative classification of armed robbery as a most heinous offense with a maximum sentence of ninety-nine years imprisonment, without the benefit of probation, parole, or suspension of sentence. See LSA-R.S. 14:64(B). We find nothing in the record to support a conclusion that any part of the sentence was imposed vindictively as a punishment for defendant’s exercising his right to trial.

The defendant apparently contends that the mere fact that he received a longer sentence after trial establishes that the longer sentence was unjustified and deprived him of due process. We reject this argument. A judge’s disposition to impose a lenient sentence during plea discussions should not be understood as setting a limit for the justifiable sentence under accepted principles of criminal justice. The better view, we think, is that the plea proposal is a concession from the greatest justifiable sentence, the concession being made because of circumstances surrounding the plea.

We conclude that the sentence contains no constitutional infirmity. Specifically, we hold that the defendant’s right to due process of law has not been abridged.

This assignment of error is without merit.

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

DIXON, J., concurs.

TATE and CALOGERO, JJ., concur in part and dissent in part.

TATE, J., assigns reasons.

CALOGERO, J., joins in TATE, J.’s reasons.

DENNIS, J., concurs in the decree only.

TATE, Justice

(concurring in part, dissenting in part).

The writer concurs in the affirmance of the conviction, but he feels that the sentence should be set aside and the case remanded for a sentence-hearing and for re-sentencing.

La.C.Cr.P. art. 843 (1974) mandatorily requires that the original sentence hearing be recorded. Inadvertently, such recording was not made. Consequently, the accused was deprived of his right to have the colloquy and showing at time of sentencing transcribed. Due to this inadvertent failure on the part of the court, the accused has been deprived of an opportunity for appellate review of his contentions of excessiveness of the sentence.

The trial court imposed an additional thirteen years imprisonment upon the accused, beyond the twenty previously determined by the judge to be appropriate, for no other reason than that the accused exercised his constitutional right to stand trial for the crime charged rather than plead guilty to it.

Thus, it is argued, the sentence imposed violates due process or is constitutionally excessive, see, La.Const. of 1974, Article 1, Section 20, State v. Williams, 340 So.2d 1382, 1984 (La.1977). These contentions can best be evaluated on appeal by review of the transcribed showing of the sentencing hearing and the contemporaneous (rather than merely recollected) reasons for the sentence of the trial judge.

      . . . . [T]he Court has always hoped that guilty pleas manifest a feeling of repentance, which the Court hopes would be a deterrent to the individual committing this crime again, and has taken that into sentencing consideration.
      “The Court further recognized (without agreeing to the basic idea) that the District Attorney feels that plea bargaining is an expeditious method of disposing of cases and unblocking the log-jam of criminal cases in this jurisdiction, actually aiding in keeping the docket current as the Criminal Docket is up to date.”


author: SANDERS, Chief Justice.

text:
    CENTRAL LOUISIANA ELECTRIC CO., INC. v. LOUISIANA PUBLIC SERVICE COMMISSION, Valley Electric Membership Corp., Intervenor-Appellant.
    No. 59015.
    Supreme Court of Louisiana.
    April 11, 1977.
    William O. Bonin, Landry, Watkins, Cousin & Bonin, New Iberia, for plaintiff-appellee.

      John Schwab, Baton Rouge, for interve-nor-appellant.
   SANDERS, Chief Justice.

Central Louisiana Electric Company, Inc. (CLECO) sought judicial review of the Louisiana Public Service Commission’s order requiring it to dismantle its facilities supplying electricity to an area known as “Gar-an’s,” located within the present corporate limits of Many, Louisiana. The district court set aside the Commission’s order and dismissed Valley Electric Membership Corporation’s intervention. Valley, the inter-venor, has now appealed.

CLECO has a non-exclusive franchise for supplying electricity in the Town of Many by ordinance adopted January 8,1963. Valley, which also supplies electricity, has no municipal franchise. The area in dispute was annexed to the Town of Many after CLECO received its franchise. However, Valley concedes that the franchise extends to the annexed area.

The Town of Many specifically restricted Valley from expanding its services within the municipal limits by resolution dated March 14,1967. Minutes of the town council show that the resolution’s purpose was to avoid duplication of services by CLECO and Valley.

Early in 1974, the owners of the Garan tract contracted with CLECO for electricity. CLECO’s nearest electric line is approximately 829 feet from the property; however, Valley has a line within 300 feet of the property. Relying upon LSA-R.S. 45:123, Valley petitioned the Louisiana Public Service Commission to prohibit CLECO from supplying the service to Garan’s alleging that Valley was the proper supplier since it had an existing line within 300 feet of the property. CLECO intervened, contending that it had the right to supply Garan’s by virtue of its franchise from the Town of Many. By Order No. U-12522, the Commission granted Valley’s petition and ordered CLECO to dismantle its Garan facilities, stating:

“The Commission is of the opinion that Valley Electric Membership Corporation has had existing lines and facilities surrounding the proposed location, and in view of the increasing cost of utility service it is far more economical and feasible for Valley Electric Membership Corporation to serve the customers than Central Louisiana Electric Company.”

The question posed here is whether or not LSA-R.S. 45:123 grants Valley the right to serve a new customer within the corporate limits of the Town of Many, though it holds no municipal franchise.

The authority of municipalities to grant non-exclusive franchises hks long been recognized. See LSA-Const. Art. 13, § 7 (1921); LSA-R.S. 33:361; LSA-R.S. 33:401, subd. A(11), (12); LSA-R.S. 33:4401. The municipal franchise in the present case was granted under the authority of LSA-R.S. 33:4401 in 1963. However, all rights created by it are continued by the Louisiana Constitution of 1974. LSA-Const. Art. 6, § 7; Art. 14, §§ 26, 35.

LSA-R.S. 45:123 provides generally that when an electric public utility has a line within 300 feet of a new customer’s point of connection, that utility is entitled to serve the customer to the exclusion of a competitor whose lines are more distant.

Valley contends that LSA-R.S. 45:123 applies to the present case, since the point of connection is admittedly within 300 feet of its line, requiring affirmance of the Commission’s order. CLECO asserts that the statute is inapplicable, since it holds a municipal franchise to supply electricity in the disputed area. CLECO relies upon the last paragraph of LSA-R.S. 45:123, which stipulates:

“The provisions of this section shall not apply to municipally-owned or operated utilities of the State of Louisiana or to the parish of Orleans. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175 or R.S. 12:426 shall alter the rights or authority of municipalities with respect to franchises.” (Italics ours.)

The cited paragraph has not previously been interpreted by this Court. In our opinion, however, the provision is clear. It means that the Commission is without authority to require adherence to LSA-R.S. 45:123, in allocating new customers, when a municipality has granted a franchise covering the area in dispute.

The Legislature obviously favored the municipal franchise system over the arbitrary line-distance rule of the statute.

This conclusion requires us to treat Valley’s alternative argument that the franchise provision is unconstitutional. Valley argues that the provision must yield to the constitutional authority granted to the Louisiana Public Service Commission to regulate public utilities.

The Louisiana Public Service Commission acted upon the present case in 1974. Hence, at the time of its decree, its constitutional powers were set forth in Article 6, § 4 of the Louisiana Constitution of 1921. The constitutional section gave the Louisiana Public Service Commission general authority to regulate electric utilities, but it also authorized the Legislature to place other public utilities under the control of the

Commission and to confer other powers upon it.

By Act 34 of 1970, the Legislature expressly placed electric cooperatives under the jurisdiction of the Commission. See LSA-R.S. 45:121; LSA-R.S. 12:426. In amending LSA-R.S. 45:123, the act also established a line-distance rule for allocating customer service between competing utilities to avoid a duplication of facilities. See South Louisiana Electric Cooperative Assn. v. Louisiana Public Service Commission, La., 309 So.2d 287 (1975). The same act also contained the reservation that nothing in the act that is in the several statutory sections it amended, shall alter the rights or authority of municipalities with respect to their franchises.

Under Article 6, § 4 of the Louisiana Constitution of 1921, the Legislature had the authority to enact the franchise reservation. Article 4, Section 21 of the Louisiana Constitution of 1974 made no change in this respect. Under well-established principles of constitutional interpretation, the Legislature has plenary authority to enact any legislation not prohibited by the constitution. See Hainkel v. Henry, La., 313 So.2d 577 (1975); 36 La.L.Rev. 533. We find no constitutional limitation applicable here.

Valley cites our decision in City of Plaquemine v. Louisiana Public Service Commission, La., 282 So.2d 440 (1973). That decision is inapposite. It held only that the Louisiana Public Service Commission had jurisdiction to regulate the rates of an intrastate pipeline company selling natural gas to a city that operated its own distributing system.

We conclude that the statute is constitutional.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are assessed against Valley Electric Membership Corporation.

      . “No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; provided, however, that nothing contained herein shall preclude (a) any electric public utility from extending service to an applicant for service at an unserved point of connection located within 300 feet of an existing electric line of such electric public utility, unless (i) such line was not in operation on April 1, 1970 and (ii) the point of connection is located within 300 feet of an existing electric line, of another electric public utility, which line was in operation on said date, or (b) any electric public utility from extending service to its own property, or to another electric public utility for resale; and provided further that any consumer who feels aggrieved with the electric service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted.“ * * * ”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Lloyd POWERS.
    No. 59043.
    Supreme Court of Louisiana.
    April 11, 1977.
    James A. Wood, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara •Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., for plaintiff-respondent-appel-lee.
   CALOGERO, Justice.

We granted writs in this case to consider the application to the particular facts of this case of Article 581 of the Code of Criminal Procedure which regulates further prosecution of a person after the time limits for trial 'have expired.

Defendant Lloyd Powers was initially indicted on January 17,1974 with armed robbery, conspiracy to commit armed robbery and murder. These charges grew out of a single incident in which a Baton Rouge attorney, H. Alva Brumfield, was robbed and murdered in his home in May of 1973 by a group of people. The present accused, Lloyd Powers, was arrested in Texas and, on October 10,1974, was returned to Louisiana for prosecution on these three charges. Two years later, on October 11, 1976, Powers filed a motion to quash the three charges on the grounds that the state had failed to bring him to trial within two years from the date of the institution of prosecution. C.Cr.P. arts. 578, 581. The trial judge granted the motion as to the two armed robbery charges but denied it as to the murder indictment. No review was sought from this action. The state subsequently, however, filed new charges against defendant, this time for aggravated burglary and conspiracy to commit aggravated burglary, charges which were based on the same incident at Brumfield’s home in May of 1973. Defendant filed a motion to quash these charges contending that they were barred by Article 581. When the trial judge denied defendant’s motion, we granted his application for writ of review so as to consider the application of that article.

Article 581 of the Code of Criminal Procedure provides that, when an indictment has been dismissed because of the state’s failure to timely bring the charge to trial, “there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts.” Defendant argues that the aggravated burglary charges are lesser offenses based on the same facts, i. e., the robbery and murder at the Brumfield residence in May of 1973. To support his position, he insists that the word “lesser” in the statute means a crime carrying a lesser penalty, not necessarily a crime which is a lesser included offense, and he analogizes to the double jeopardy jurisprudence to argue that the factual proof at trial on the aggravated burglary charge will be the same evidence the state would have used against him at trial in the armed robbery charge.

The state admits that both sets of charges grew out of the same factual context, but urges that the two sets of crimes were independent of each other. The state’s position is that the offense of aggravated burglary had been completed before Mr. Brumfield returned home. His return unfortunately exposed Mr. Brumfield to the crimes of armed robbery and murder. The state’s argument, in essence, is that the burglary was not a “lesser offense based on the same facts” as the armed robbery, but an independent offense which had completely transpired before the armed robbery occurred, even though both crimes were part of one extended criminal transaction.

In order to resolve this conflict, we must examine Article 581 and its place in our Code of Criminal Procedure. Initially, of course, it can be noted that the provision is one of those articles which implements the general directive of the Code that its provisions “shall be construed to secure the elimination of unjustifiable delay.” C.Cr.P. art. 2. The article complements the other provisions of this Chapter, Articles 571-577, which set out the time limitations within which an accused must be charged after the commission of the offense. But it is separate from the federal and state constitutional guarantees to a speedy trial. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Moore, 300 So.2d 492 (La.1974); C. Joseph, Criminal Trial Procedure, 36 La.L.Rev. 605 (1976).

The official revision comments indicate that the redactors in drafting the article, studied similar time limitation statutes in other states. See specific statutes listed in comment to Article 578. We have read all of those statutes in hopes of discovering a pattern to them which would help us interpret our own provisions, but we have found no pattern at all. Some of the provisions allow reprosecution on the very crime which was charged in the dismissed indictment; others view the dismissal as an acquittal or a grant of immunity for any further prosecution growing out of the same offense or any charge which could have been brought initially. Specific provisions in other states on the effect upon a subsequent prosecution of a dismissal of proceedings for delay in trial likewise vary greatly, and depend primarily upon the actual terminology of the state statute which authorizes the dismissal. See 50 A.L.R.2d 943. It is uniformly true, however, that these statutory provisions which, like our provision, prohibit retrials after quashing of indictments on the basis of non-timely trial, do so for the reason that to allow the state to initiate prosecution a second time for the same offense would nullify the timeliness requirement and make its protection meaningless. Id. There is no question, therefore, that the state here could not have reinstituted prosecution of defendant Powers for the crimes of armed robbery or conspiracy to commit armed robbery which occurred at the Brumfield residence in May of 1973. C.Cr.P. art. 581; see State v. Murray, 222 La. 950, 64 So.2d 230 (1953). Moreover, it is clear that had defendant been denied his constitutional right to a speedy trial, no further prosecution of him could have been instituted for any charge that could have originally been brought out of that incident. See Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394 (1962), cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127; State v. Bullock, supra.

The codal language of Article 581 prohibits reprosecution after an initial indictment is quashed for untimely trial “for the same or a lesser offense based on the same facts.” This same language is used in Article 576 which regulates the filing of new charges following dismissal of a charge, for, among various reasons, the state’s failure to initiate its prosecution against the accused within specified statutory time limits. The official revision comment to that article indicates that the “same facts” language would prohibit- a subsequent charge which is based on some of the same facts as the initial charge, even though it is not based on all of them. The comment also reflects the intention of the redactors to codify the rule in the case of State v. Murray, supra, which is the only case which we have found that specifically interprets this language in either article. In that case, a delivery boy was charged with a single theft of $63.89 from his employer, a sum which was actually the total of four separate thefts on that day. When the state nolle prossed the indictment and charged him with theft of $47.94 from the employer, a sum which was the total of only three of the previously-included four thefts, this Court held that both charges were “based on the same facts.” It is clear, then, that the codal language envisions a rather broad interpretation, and that the timeliness provisions cannot be circumvented merely because the state will be able to prove its case on the later-charged offense without establishing all of the elements that would have been necessary to prove violation of the formerly-charged offense. We understand, for example, that if A committed armed robbery of B by holding a gun on him and taking his money, A could not be charged with assault relative to the same incident following an Article 581 quash of the armed robbery indictment. In most situations, therefore, no further prosecution for the same offense can be made after an Article 581 quash.

We find, however, that the situation before us is not a usual situation. Here, the aggravated burglary of the empty residence had completely taken place before Mr. Brumfield returned home. Every element of the crime was complete before Brumfield returned home. The elements of the aggravated burglary committed here were, presumably, these: the unauthorized entry of an inhabited dwelling with the intent to commit a felony or theft therein while armed with a dangerous weapon. It was only upon Brumfield’s return that the offense of armed robbery took place, and every element of the armed robbery took place after his return. See R.S. 14:64. Therefore, because these were two separate crimes which occurred at different times and which contained separate elements (even though they were admittedly both part of one extended criminal transaction) we find that the charges for aggravated burglary and conspiracy to commit aggravated burglary were not “the same or lesser offense[s] based on the same facts” as the charges for armed robbery and conspiracy to commit armed robbery.

Accordingly, for the reasons assigned, the ruling of the trial judge overruling defendant’s motion to quash is affirmed.

      . The state’s theory of the case is that Powers is guilty of these crimes as a principal and/or as a conspirator even though he was not personally present in the Brumfield home.

      . Article 578 of the Code of Criminal Procedure sets a limit of two years for trial from the date of institution of the prosecution in felony cases other than capital cases, but allows three years to bring a person to trial in a capital case.

      . Actually the state, having received notice of defendant’s filing of the motion to quash, filed its new charges just before the trial judge actually quashed the first indictment but after the running of the two-year period. We do not find that this fact takes the situation out from under the purview of Article 581, and the state does not contend before us that it does.

      .Article 581 provides in full that:
      “Upon the expiration of the limitations established by this Chapter, the court shall, upon motion of the defendant, dismiss the indictment. This right of dismissal is waived unless the motion to quash is made prior to trial. “If the indictment is dismissed under this article, there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts.”

      . Interestingly, the statutory provision is narrower than the constitutional right to a speedy trial (because, for example, the acceptable time period may be longer than that approved under the constitutional guarantee) and it is at the same time broader than the constitutional right (because, for example, there is no need to assess prejudice to the accused nor to require that an accused make known his desire for an early trial). In the instant case, the lengthy delay was caused by prolonged plea bargain negotiations between the state and defendant. The state’s reason for delay is of no moment in questions of the running of statutory time periods, see State v. Martens, 338 So.2d 95 (La.1976), but may well be relevant in a determination as to whether defendant’s right to speedy trial has been violated. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Stetson, 317 So.2d 172 (La.1975); State v. Bullock, 311 So.2d 242 (La.1975).

      . The “facts” to which we refer have not, of course, been proved against defendant Powers at any trial, and our language here is not intended in any way to limit the state’s proof or to establish any precedent should defendant be tried on these charges, be found guilty, and appeal his case. The state and defendant merely agreed before us what the facts were that the state hoped to prove so that we would have some information on which we could resolve the legal issue, since no record was made at the hearing on the motion to quash.

      . Revised Statute 14:60 provides that aggravated burglary is the “unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender, (1) Is armed with a dangerous weapon; or (2) After entering arms himself with a dangerous weapon; or (3) Commits a battery upon any person while in such place, or in entering or leaving such place.”
      Assuming that these persons were armed or armed themselves later, the crime was complete when they entered the dwelling without authorization and with the specified intent. The residence was “inhabited” because Brumfield lived there irrespective of the fact that no one was at home at the time of the unauthorized entry. See State v. Arceneaux, 302 So.2d 1 (La.1974) and the official revision comment to R.S. 14:60.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Roger Dale DOUCET.
    No. 59704.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Roger Dale Doucet, applying for writ of certiorari.

Writ refused. The issue posed may be raised by assignment of error in the appeal which has been taken.

SUMMERS, J.,

concurs in the denial on the ground that an application for habeas corpus will not be entertained in a case where an appeal is pending.


author: TATE, J.,

text:
    STATE of Louisiana v. Daryl HAMPTON et al.
    No. 59740.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Daryl Hampton,,Jerome Robinson, Claude Robinson, George Washington applying for writs of certiorari, mandamus, prohibition, and for stay order.

Application denied; there is no law requiring the pre-trial production of the testimony or evidence to be adduced from the witness Reel; we decline to rule in advance on a question of recess during trial, but note that there is an adequate remedy by appeal in the event of error and conviction.

TATE, J.,

dissents. The accused will be denied due process unless they are allowed access to the state’s expert information in time to prepare their defense. At a minimum, a recess must be allowed to the accused for their own expert investigation of the state’s scientific evidence, after it is introduced by the state. Relief requested should be granted now to avoid trial disruption and the probability of reversal in the event of conviction.


text:
    Georgette M. BARBIN v. CNA INSURANCE.
    No. 59572.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Georgette M. Barbin applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 377, Fourth Circuit, Parish of Orleans.

Writ denied. On the facts found, the result is correct.

TATE, J., recuses himself.


text:
    HERTZ LEASE PLAN, INC. v. URBAN TRANSPORTATION & PLANNING ASSOCIATES, INC.
    No. 59587.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Urban Transportation and Planning Associates, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, 342 So.2d 886, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents from denial.

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


text:
    Elrick J. CASTILLE v. Donald SIBILLE et al.
    No. 59588.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Elrick J. Castille applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry.

Writ refused. On the facts found by the court of appeal, the result is correct.

DIXON, J., dissents from the denial.

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


text:
    STATE of Louisiana v. Jeffery VERDIN and Sidney Verdin.
    No. 59543.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Jeffery Verdin and Sidney Verdin, applying for supervisory writs and writs of certiorari, prohibition, mandamus and/or review.

Writ denied. In view of the sentence imposed, we see no reason to exercise our supervisory jurisdiction in this case.

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

CALOGERO, J., is of the opinion this writ should be granted.


text:
    STATE of Louisiana v. George N. LINSON, Jr.
    No. 59576.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: State of Louisiana through District Attorney Leonard E. Yokum applying for remedial writs.

Writ denied. Treating state’s appeal as an application for writs, we are unable to say that the trial judge erred in his ruling.

SUMMERS, J., is of the opinion the application is not timely filed.


text:
    STATE of Louisiana v. Theodore J. MITCHELL.
    No. 59608.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Theodore J. Mitchell, applying for supervisory writs, writs of certiorari, prohibition and mandamus.

Writ refused. Relator has an adequate remedy for review in the event of conviction.

TATE, J.,

concurs. While I doubt that the conduct charged violates the statute, I agree that the statute itself is not unconstitutional.


text:
    PUGH, BUATT, LANDRY AND PUGH v. Walter THEALL et al.
    No. 59611.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Walter Theall and Joseph Maxie Pierce applying for certiorari, or writ of review, to the Court of Appeal, 342 So.2d 274, Third Circuit, Parish of Vermilion.

Application denied; the judgment of the court of appeal is correct.

SUMMERS, J.,

I concur in the denial of this application on the ground that the result is correct. However, I am of the opinion that the maiden name of the wife should be used in all transactions affecting real estate. Reliance upon custom has the effect of rendering uncertainty to transactions requiring more definite rules.


text:
    STATE of Louisiana ex rel. Salvador J. LOGRANDE v. STATE of Louisiana and Ross Maggio, Warden, La. State Penitentiary.
    No. 59727.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Salvador J. Logrande applying for writ of habeas corpus.

Application denied: The ruling of the trial judge is correct. The writ application concerns a matter presently pending on appeal (No. 59574) and reviewable thereunder C CrP 363.


text:
    STATE of Louisiana v. Sue WALL.
    No. 59583.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Sue Wall applying for writs of certiorari, review, prohibition, mandamus and stay order.

Writ denied. Under the trial court’s evaluation of credibility, we find no error of law.


text:
    Neil DASPIT v. CITY OF ALEXANDRIA.
    No. 59604.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: City of Alexandria, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 342 So.2d 683.

Application denied; the result is correct.


text:
    Maurice L. BROWN v. ALICE-SIDNEY OIL COMPANY et al.
    No. 59605.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Maurice L. Brown, applying for writs of certiorari or review.

Writ denied. No error of law.


text:
    Warren J. MOITY v. SWIFT AGRICULTURAL CHEMICAL CORPORATION.
    No. 59607.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Warren J. Moity applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 342 So.2d 287.

Writ denied. On the facts found by the Court of Appeal, the result is correct.


text:
    Jesse P. WALLACE v. GOODYEAR TIRE AND RUBBER CO. and Travelers Insurance Co.
    No. 59610.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Jesse P. Wallace, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 343 So.2d 382.

Writ refused. On the facts found by the Court of Appeal, we cannot say the result is incorrect.


text:
    John L. KINCHEN et al. v. DIXIE AUTO INSURANCE CO.
    No. 59615.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Dixie Auto Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston. 343 So.2d 263.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Warren WALKER.
    No. 59661.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: State of Louisiana through the District Attorney, Ossie Brown, applying for supervisory writs.

Writ denied. No error in the trial court ruling.


text:
    STATE of Louisiana v. Thomas J. ABRAM.
    No. 59771.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Thomas J. Abram applying for writs of certiorari, prohibition, and mandamus.

Writ denied: On the showing made, we find no abuse of the trial court’s discretion in denying bond after conviction.


text:
    STATE of Louisiana v. Earl MALVEAUX.
    No. 59766.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: Earl Malveaux applying for writs of certiorari, prohibition or mandamus.

Writ denied. We find no abuse of discretion by trial judge.


text:
    STATE of Louisiana v. James Ray ANTELL.
    No. 59733.
    Supreme Court of Louisiana.
    April 27, 1977.
   In re: James Ray Antell, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. If there is probable cause to detain the applicant, the technical invalidity of the arrest at the time it was made does not justify relief under the habeas corpus application here made. Our denial of this writ is without prejudice to the applicant’s right, if he is not incarcerated by virtue of an indictment, to apply for a preliminary examination in which the burden of proof will be on the state to show probable cause. See La.C.Cr.P. art. 296 and Official Revision Comment (a).


author: COVINGTON, Judge:

text:
    EQUILEASE CORPORATION v. Marjorie Bell WELCH et al.
    No. 11-280.
    Court of Appeal of Louisiana, First Circuit.
    March 7, 1977.
    Rehearing Denied March 31, 1977.
    Clarence F. Favret, Jr., New Orleans, of counsel, for plaintiff-appellee Equilease Corp.
    Paul T. Thompson, Baker, of counsel, for defendants-appellants Marjorie Bell Welch, et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This court, ex proprio motu, issued an order for the parties to show cause why the appeal should not be dismissed as untimely.

A chronology of pertinent events indicates that the trial court’s judgment was signed on March 29,1976, an order of devol-utive appeal was signed on June 7, 1976, with the return day fixed for July 30, 1976, and the requisite bond was filed on June 25, 1976. On July 21, 1976, on motion of the Clerk of Court, with his attached affidavit that the testimony had not been received, the return date was extended for 60 days from July 30, 1976; on September 20, 1976, again on motion of the Clerk and with his accompanying affidavit that the testimony had not yet been received, the return day was extended for an additional 60 days from September 28, 1976. Therefore, the last extended return day was November 27, 1976, which was on a Saturday, so the record should have been lodged no later than Monday, November 29, 1976. However, it was not filed until December 6 because the appellant did not pay the Clerk’s costs timely. The plaintiff filed an answer to the appeal on December 20.

In response to the show cause order, the appellant filed a brief to which was attached two affidavits. One was made by the counsel’s law clerk and was to the effect that, at the request of a member of the firm, he had determined that the appeal bond had been filed and that the extended return day was “Thirty (30) days from the first return day which was July 28, 1976. I was secondly so instructed to inquire in early September, 1976. Pursuant to said instructions, I determined that the return day had once again bee (sic) extended to September 28, 1976.” Obviously, this affidavit contains erroneous information. The other affidavit was by a former secretary of the law firm; she deposed that on or about June 14, 1976, she, at counsel’s request, contacted a member of the staff of the Clerk of Court and was informed that the costs had not yet been tabulated and that “our office would be informed of the costs in the matter once they had been tabulated.” This was some five months prior to the ultimate extended return date.

In his brief, appellant’s counsel states: “Finally, relying on the promise of the Clerk to notify, appellant allowed the fourth (4th) consecutive return day, which was unknown to him, to pass. Appellant had been aware of the three (3) previous return days but not the fourth.” The record reflects only three such return days, i. e., the original one and the two extensions thereof — there was no fourth one.

While appeals are favored in law, this court stated, in Tropicana Hotel and Country Club v. Dantoni, 287 So.2d 817 (1974):

“[U]nder the authority of the Civil Code of Procedure Article 2161 a motion to dismiss an appeal shall be granted if the irregularity, error or defect is imputable to the appellant. It is the mandatory duty of the appellant to pay these fees and costs not later than three days before the return date or extended return date, and if he does not, any delay in lodging the record of appeal in the appellate court is imputable to him. Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970). The clerk is not required by law to notify the appellant of these costs as a condition precedent to the imputation of fault on appellant’s part. This is true because the legislature (sic) intent as expressed in Code of Civil Procedure Articles 2126, 2127, 2161 and R.S. 13:4445(A) places the responsibility for appellate costs with the appellant. We quote the Louisiana Supreme Court, accordingly, in the case of Louisiana Power & Light Company v. Lasseigne, supra, as follows:
‘ * * * Our law does not require billing for appellate costs and fees by the clerk, but to the contrary it requires timely tender by the appellant of these costs and fees to the clerk.’ (Louisiana Power & Light Company v. Lasseigne, 232 So.2d 278, 283.)”

Also, see Mabou v. Thomas Jefferson Insurance Company, 321 So.2d 786 (La.App. 3 Cir. 1975).

It has not been shown that the failure to timely pay the costs and fees should not be imputed to the appellant.

Accordingly, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.

      . Ninety-six pages long.


author: COLE, Judge.

text:
    Elton Charles DUPRE v. STERLING PLATE GLASS & PAINT COMPANY, INC., et al.
    No. 11167.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.

      Arthur Cobb, Baton Rouge, of counsel for plaintiff-appellee Elton Charles Dupre.
    Boris F. Navratil, of Breazeale, Sachse & Wilson, Baton Rouge, of counsel for defendant-appellant Sterling Plate Glass & Paint Co., Inc.
    Robert D. Hoover, Baton Rouge, of counsel for Standard Roofing Co., Inc. & U. S. Fidelity & Guaranty Complex.
    William C. Kaufman, III, Baton Rouge, of counsel for defendant-appellant Southern Bldg., Inc. & American Ins. Co.
    James E. Moore, Jr., Baton Rouge, of counsel for Alpano Aluminum Products.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This is a suit for workmen’s compensation weekly benefits, medical expenses, penalties, and attorney’s fees filed by the plaintiff, Elton Charles Dupre, against his former employer, Sterling Plate Glass & Paint Company, Inc. (Sterling). This claim arises out of an accident which occurred on February 11, 1976, in which the plaintiff fell five stories from the new Our Lady of the Lake Hospital which was under construction at the time. Also named as defendants in plaintiff’s suit were Southern Builders, Inc. (Southern), the general contractor on the project, and Southern’s workmen’s compensation carrier, The American Insurance Company (American).

Southern filed a third party demand based on La.R.S. 23:1063 for indemnity against Alpano Aluminum Products (Alpa-no) and against Sterling. Alpano, in turn, filed a third party demand against Sterling for indemnity. These claims were predicated on the contractual relationship between the companies. Southern awarded a subcontract for the window work to Alpano, a window manufacturer. Alpano, in turn, contracted with Sterling, the plaintiff’s employer, to install the windows on the project.

Sterling and Southern also filed third party claims against Standard Roofing Company (Standard), another Southern subcontractor, claiming that at the time of the accident the plaintiff was the borrowed employee of Standard, thus making Standard liable, in whole or in part, to the plaintiff for workmen’s compensation.

At the trial all parties stipulated to the plaintiff’s disability. The trial court rendered judgment in favor of plaintiff and against the defendants, Sterling and Southern, in solido, for workmen’s compensation benefits, less a credit for benefits already paid, plus reasonable and necessary medical expenses.

Judgment was further rendered against Sterling for a 12 percent penalty on medical expenses which were not timely paid and for attorney’s fees.

Judgment was rendered in favor of Southern and American on their third party demand against Alpano and Sterling for full and complete indemnity for the amount of the judgment in favor of the plaintiff. Judgment was also rendered in favor of Alpano on its third party demand against Sterling for full indemnity for the amount of the judgment rendered against Alpano in favor of Southern and American.

The third party claims of Sterling, Southern and American against Standard were dismissed.

Two issues are presented by this appeal. (1) Was the plaintiff the borrowed employee of Standard at the time of the accident, thereby making Standard liable in whole or in part for the plaintiff’s workmen’s compensation claims? (2) Is plaintiff entitled to penalties and attorney’s fees because of Sterling’s delay in paying medical expenses?

The facts as to how the accident happened are basically undisputed. On February 11, 1976, the plaintiff and a coworker were engaged in preparing the fifth floor of the new Our Lady of the Lake Hospital for window installation. As they were returning to their jobs on the fifth floor from a coffee break, they noticed a man at the end of a fifth floor wing, subsequently identified as an employee for Standard, attempting to lower on a rope a section of pipe through a floor-to-ceiling opening which had not yet been enclosed by a glass panel that was to be installed. The Standard employee was having difficulty lowering the pipe because it was apparently lodged against the edge of the floor below. The plaintiff, while attempting to aid the Standard employee by kicking the pipe free, evidently lost his balance and grabbed the guard rail. The guard rail gave way and the plaintiff fell out of the building.

The only factual dispute concerns whether the Standard employee asked the plaintiff to assist him or whether the plaintiff voluntarily offered his assistance. However, as will be evident from our discussion below, this factual dispute has no bearing on the result reached herein.

Sterling, Southern and American appeal the decision of the trial court that the plaintiff was not a borrowed employee or employee “pro hac vice” of Standard at the time of the accident. To support their contention to the contrary, they cite Spanja v. Thibodaux Boiler Works, 2 So.2d 668 (La.App. Orleans Cir. 1941), and Dixon v. Herrin Transportation Company, 81 So.2d 159 (La.App. 2nd Cir. 1955). In these tort cases, the courts held that the plaintiffs’ exclusive remedies against the defendants were in workmen’s compensation, because at the time of the accident in question they were borrowed employees.

The term “borrowed employee” is not a magical term, the mere use of which creates liability under Louisiana workmen’s compensation laws. A prerequisite to any action arising under Louisiana workmen’s compensation law is the existence of an employee-employer relationship. La.R.S. 23:1021, et seq.; e. g., Lewis v. Bellow, 212 So.2d 540 (La.App. 3rd Cir. 1968); Brownfield v. Southern Amusement Company, 196 La. 74, 198 So. 656 (1940).

As a general rule, for such a relationship to exist there must be a contract of employment, either expressed or implied, whereby services are furnished in anticipation of compensation. St. Paul Fire and Marine Insurance Company v. Richard, 208 So.2d 35 (La.App. 3rd Cir. 1967).

In discussing the employment relationship, it is said:

“A person may become an employee within the meaning of the Workmen’s Compensation Act if he is performing a service for another with the latter’s consent and subject to his control or direction. No formal contract between the two is necessary, and there need be no specific agreement as to how much is to be done or how long the arrangement shall continue. Nor is it required that the amount or terms of payment be settled, so long as the circumstances fairly indicate that the services were not intended as a gratuity and both parties understood that payment was to be made therefor.” (Malone, “Louisiana Workmen’s Compensation,” § 52, p. 53)

As noted in Benoit v. Hunt Tool Company, 219 La. 380, 53 So.2d 137 (1951), decisions throughout the country (and, we add, this state) involving questions of borrowed employees cannot be reconciled in many instances. Compare, for example, Rooney v. Overseas Railway, Inc., 173 La. 183, 136 So. 486 (1931), and Spanja v. Thibodaux Boiler Works, supra. A review of the jurisprudence illustrates that various criteria have been considered to determine where the “borrowed employee” doctrine is applicable. These criteria are applied in varying combinations and with varying emphasis. No fixed test exists to determine the existence of a borrowed employee relationship. However, certain factors have been given great weight in the determination of the existence of such a relationship.

The most widely accepted test cited for establishing an employer-employee relationship involves the right of control. Benoit v. Hunt Tool Company, supra; Ruiz v. Shell Oil Company, 413 F.2d 310 (5th Cir. 1969) (action arising under the Longshoremen and Harbor Workers Compensation Act). The right of control has been described to include the following factors: the right to select and discharge the employee, the right to supervise and direct his work, and the method by which it is done, and the manner in which the employee is paid. Berry Brothers General Contractors, Inc. v. Air Marine, Inc., 328 So.2d 771 (La.App. 1st Cir. 1976); St. Paul Fire and Marine Insurance Company v. Richard, supra; Alexander v. J. E. Hixson and Sons Funeral Home, 44 So.2d 487 (La.App. 1st Cir. 1950).

Implicit in the right to control is the necessity that the lending employer relinquish its control over its employee to the borrowing employer and that he is performing work for the borrowing employer’s business. Benoit v. Hunt Tool Company, supra; Berry Brothers General Contractors, Inc. v. Air Marine, Inc., supra. Additionally, the concept of the “borrowed employee” doctrine, by its terms, connotes an agreement of some type between the lender and the borrower, that the lender relinquished such control of the employee to the borrower, Ruiz v. Shell Oil Company, supra; Malone, § 57, pp. 61-66, pocket part, § 57, pp. 14-21.

In the Spanja case cited by appellants, the Court discussed at length the right of control in reaching their result. However, in Dixon v. Herrin, also cited by appellants, the Spanja case was cited for the proposition that since the plaintiff was not engaged in any work related to his regular employment, the conclusion was inescapable that he was a borrowed employee. This proposition is not only a misstatement of the Spanja case, but also a misstatement of the law.

We will not try to distinguish the cases cited by counsel on the basis of their facts. Because there is no general test for employment relationships, each case revolves on its own particular facts. To determine the applicability of the Workmen’s Compensation Act, it is necessary to inquire into the nature of the relationship involved based on the facts of the particular case. Sones v. Mutual of Omaha Insurance Company, 272 So.2d 739 (La.App. 2nd Cir. 1972).

A review of the facts in this case demonstrates a lack of factors sufficient to justify an employment relationship. Standard exercised no power of control over the plaintiff herein, either in selecting, discharging, supervising or directing his work. They did not control the manner by which he was paid; nor did they intend to compensate him for his services. The assistance furnished Standard’s employee by the plaintiff was in the nature of a gratuity or a courtesy extended and does not constitute an employment relationship.

Sterling never intended to relinquish control over the plaintiff, nor was any agreement, either express or implied, ever reached between the alleged lender (Sterling) or the alleged borrower (Standard) that Sterling would relinquish control over the plaintiff to Standard. As testified by Standard’s supervisor at the site and uncon-tradicted by the appellants, the customary practice on construction sites when one employer needs help is to request assistance from one of the other employer’s supervisors on the site.

Therefore, for the above reasons, we conclude that the trial court correctly dismissed the third party claims of Southern, Sterling and American against Standard, as the plaintiff was not Standard’s borrowed employee at the time of the accident.

Sterling makes the additional contention that the trial court erred in awarding the plaintiff penalties and attorney’s fees. At the time of trial, Sterling had paid all weekly compensation benefits and medical expenses due up until that time. Therefore, the only issue at trial was whether the plaintiff was due any penalties or attorney’s fees for the untimely payment. The trial court awarded 12 percent of $6,997.78 in medical fees as penalties and $2,000 in attorney’s fees to the plaintiff because of the untimely payment of the medical expenses by the employer.

La.R.S. 23:1201.2 provides:

“A. Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney's fees for the prosecution and collection of such claim, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due, and all reasonable attorney’s fees for the prosecution and collection of such amount. Any such employer who at any time discontinues payment of claims due and arising under the provisions of this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the penalties set forth above, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney’s fees shall not apply in cases wherein the employer is found liable for penalties and attorney’s fees under the provisions of this Section.
“B. The notice required by the provisions of this Section may be given or made by any person claiming to be entitled to compensation, or by any one on his behalf, and shall contain the information and signature required by R.S. 23:1293 and shall be given as required by R.S. 23:1294. Added Acts 1958, No. 432, § 1.”

Because the penalty provided by the statute is harsh, it should not be imposed where there is a good faith dispute as to the occurrence of the accident or its causal connection to the disability. In such cases the employer’s refusal to pay is deemed to be in good faith and with just cause. Crooks v. Belden Corporation, 334 So.2d 725 (La.App. 3rd Cir. 1976); Vining v. Phoenix of Hartford Insurance Company, 256 So.2d 698 (La.App. 1st Cir. 1971).

To determine whether the employer’s action in refusing to pay the claim was arbitrary, capricious or without probable cause within the meaning of § 1201.2, it is necessary to determine what information the employer used, or had available to it, upon which it based its actions. Gauthier v. Employers National Insurance Company, 316 So.2d 769 (La.App. 1st Cir. 1975).

In the instant case, the plaintiff’s attorney testified concerning his efforts to collect both weekly benefits and medical expenses from Sterling. His testimony was uncontradicted. Shortly after the accident, on February 27, 1976, Sterling paid two medical expenses relating to the accident. This action indicated, at that time, knowledge of the accident and an apparent acceptance of responsibility for compensation claims.

Because the plaintiff had not received any weekly benefits' or additional medical expense payments, he contacted his attorney on about March 1, 1976. On March 3, 1976, plaintiff’s attorney, Mr. Cobb, called a Sterling officer. Sterling informed Cobb of the Ohio compensation scheme which is state-administered and pays $186 per week. Sterling told Cobb of its desire to have the plaintiff covered by the Ohio compensation program, because it had no workmen’s compensation insurance. There was serious question, however, that plaintiff’s injury was covered under the Ohio scheme. At this time Sterling agreed to begin to pay the plaintiff $85 per week plus medical expenses.

When no payment was forthcoming, on March 17, 1976, plaintiff filed suit and a preference setting was obtained for April 19, 1976. The filing of suit is the first written notice which meets the criteria established by § 1201.2. On March 25, 1976, Cobb again talked to Sterling. This conversation revealed that Sterling was concerned about the possibility of double payment to plaintiff should it commence payment and then the Ohio Bureau of Workmen’s Compensation should also begin payment. Sterling agreed to pay $85 per week plus medical expenses, in return for which the plaintiff agreed to pass the hearing date and also agreed that he would reimburse Sterling for any double payment which might result. On April 5, 1976, the plaintiff received payment covering weekly benefits from February 11 to April 2. On April 20, payment was made for benefits from April 3 to 23. Subsequently, Sterling began to pay compensation benefits on a weekly basis.

As noted by the trial court, “According to the exhibits filed in the record, together with Cobb’s testimony, it appears that it [Sterling] was furnished, either directly or by copy of transmittal letters to the Ohio Commission,” from March 18, 1976, to March 29,1976, a total of $6,997.78 in medical bills arising from the accident. Payment for these expenses was not received by the plaintiff until June 10, 1976, more than sixty days after notice of the claims. These medical expenses form the basis of the trial court’s award for penalties and attorney’s fees.

Sterling contends that the penalty provision of § 1201.2 applies only to the untimely payment of weekly compensation benefits and not to medical expenses. However, the statute covers “any claim due under the provisions of this Chapter.” As correctly noted by the court below, this provision obviously includes medical expenses provided under § 1203 of the chapter. See Scott v. Hartford Accident & Indemnity Company, 302 So.2d 641 (La.App. 3rd Cir. 1974) (12 percent penalties paid on both weekly compensation benefits and medical expenses); Vining v. Phoenix of Hartford Insurance Company, supra (attorney’s fees for arbitrary refusal to pay medical expenses).

Sterling additionally seems to suggest as justification for its refusal to pay benefits that it was a small, family-owned company and that the payment of such claims was coming from its cash outflow. However, financial difficulty or inability to pay does not justify nonpayment of compensation claims provided by law. Pennywell v. Crawford, 262 So.2d 830 (La.App. 2nd Cir. 1972).

It is suggested that the legal uncertainty of whether the plaintiff would be covered under Ohio’s compensation scheme to which Sterling contributed, justifies Sterling’s failure to pay the medical expenses. However, the trial court correctly pointed out:

“While it is true that there was some uncertainty whether the Ohio Commission would make the payments or not, this did not excuse Sterling in timely paying the bills, especially when it had an agreement with Dupre recognizing its right to reimbursement when and if the Ohio Commission commenced making payments. * * * ”

In this case, there was no good faith dispute as to the occurrence of the accident or the causal connection between it and the disability. There is ample evidence to support the trial court’s conclusion that Sterling’s failure to pay the medical expenses within sixty days of notice thereof was arbitrary, capricious and without probable cause.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of these proceedings are to be assessed to Sterling.

AFFIRMED.

      . La.R.S. 23:1063 provides:
      “A principal contractor, when sued by an employee of a subcontractor or his dependent, may call that contractor, or any intermediate contractor or contractors, as a codefendant, and the principal contractor shall be entitled to indemnity from his subcontractor for compensation payments paid by the principal contractor on account of an accidental injury to the employee of the subcontractor.”