author: SANDERS, Chief Justice. DIXON, Justice

text:
    CITY OF NEW ORLEANS v. Kenneth OWEN.
    No. 60745.
    Supreme Court of Louisiana.
    March 6, 1978.
    Richard A. Thompson, New Orleans, for defendant-relator.
    Philip S. Brooks, City Atty., Robert H. Belknap, New Orleans, for plaintiff-respondent.
   SANDERS, Chief Justice.

The City of New Orleans charged Kenneth Owen with obscene live conduct, a violation of Municipal Code Section 42-51(1). Defendant filed a motion to quash the affidavit. The Municipal Court of the City of New Orleans denied the motion to quash. Defendant sought writs to the Orleans Criminal District Court, which denied his application. Defendant then applied to this Court for writs. We granted writs. City of New Orleans v. Owen, La., 349 So.2d 494 (1977).

In his motion to quash, defendant alleges that: the municipal ordinance, MCS 42-51, is unconstitutional under the First and Fourteenth Amendments to the United States Constitution and Article I, §§ 2, 3, 5, and 7 of the Louisiana Constitution (1974); the municipal ordinance, MCS 42-51, is invalid as violative of LSA-R.S. 14:106(E); and the affidavit is legally insufficient. Finding the affidavit fatally defective, we do not reach the ultimate issue of the ordinance’s validity.

The ordinance under which defendant was charged, MCS 42-51, provides:

“(A) It shall be unlawful for any person to knowingly engage or participate in, manage, produce, sponsor, present or exhibit obscene live conduct, which production, performance or exhibition, when taken as a whole, lacks serious literary, theatrical or artistic value, to or before an audience consisting of at least one person or spectator on any street, sidewalk, park or other public place or in any place exposed to public view, or in any place open to the public or to a segment thereof, whether or not an admission fee is charged or whether or not attendance is conditioned upon the presentation of a membership card.
“(B) Definitions:
(1) Obscene live conduct is:
(a) The actual or simulated performance of acts of human sexual intercourse, masturbation, sodomy, bestiality, oral copulation or excretory functions; or
(b) The actual or simulated touching, caressing or fondling of the anus, genitals or female breast; or
(c) The actual or simulated displaying of the pubic hairs, anus, vulva, genitals, or nipples of the female breast.
(2) Knowingly means having general knowledge or having reason to know or a belief or reasonable grounds for belief which warrant further inspection or inquiry or both of the character of any conduct described herein.”

The ordinance prohibits “obscene live conduct.” The ordinance then defines “obscene live conduct” in three distinct categories. There is no short form for charging the offense. See LSA-C.Cr.P. Art. 465. The instant affidavit charges only that the defendant violated Ordinance No. 42-51(1) relative to “obscene live conduct.” Nowhere does it allege the particular conduct upon which the prosecution is based.

In a criminal prosecution, an accused has a constitutional right to be informed of the nature and cause of the accusation against him. Sixth Amendment to the United States Constitution; Article I, § 13 of the Louisiana Constitution (1974).

Louisiana Code of Criminal Procedure Article 464, dealing with the nature and context of indictments, provides in pertinent part:

“The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

In City of New Orleans v. Hollis, La., 329 So.2d 681 (1976), we found an affidavit legally insufficient. We stated:

“While it is unnecessary to track the language of the ordinance, the affidavit must charge the conduct proscribed by the ordinance. In State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970), this Court overturned a conviction for indecent exposure where the bill of information omitted an allegation that the act was committed with the requisite ‘intent of arousing sexual desire,’ stating:
“ ‘Basic law in our state and throughout this nation requires that the facts which constitute each and every essential element of the crime charged must be set forth with certainty, clarity, particularity, and precision, so as to inform the accused of the nature and cause of the accusation.’ ”

In order to meet the constitutional requirement, the Court has not hesitated to quash indictments which failed to state the elements of the crime. See, e. g., State v. George, 247 La. 333, 170 So.2d 861 (1965); State v. Varnado, 208 La. 319, 23 So.2d 106 (1945); State v. Hebert, 205 La. 110, 17 So.2d 3 (1944).

In our opinion, the general reference to obscene live conduct in the affidavit is insufficient to charge the offense. Obscene live conduct can only be a conclusion from specific acts. Although a defendant in an appropriate case can be charged under more than one subparagraph of the ordinance (See State v. Rowan, 233 La. 284, 96 So.2d 569 (1957).), the conduct upon which the charge is based must be alleged. State v. George, supra; State v. Verdin, 192 La. 275, 187 So. 666 (1939); State v. Morgan, 204 La. 499, 15 So.2d 866 (1943).

Thus, we conclude that the affidavit is fatally defective. The lower courts erred in denying defendant’s motion to quash.

For the reasons assigned, the ruling of the trial judge is reversed, the motion to quash is sustained, and the defendant is discharged under the present affidavit.

DIXON, J., concurs with reasons.

DENNIS, J., concurs. The ordinance is broader than the state obscenity law.

DIXON, Justice

(concurring).

I concur, also believing, as the court did when the writ was granted, that the “knowingly” section of the ordinance is invalid.

      . Code of Criminal Procedure Article 461 provides in pertinent part:
      “ ‘Indictment’ includes affidavit and information, unless it is the clear intent to restrict that word to the finding of a grand jury.”


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Maurice GIBBS.
    No. 60769.
    Supreme Court of Louisiana.
    March 6, 1978.
    Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry P. Julien, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Maurice Gibbs was indicted for the second degree murder of Russell Taylor in violation of R.S. 14:30.1. A jury of twelve returned a verdict of guilty as charged on September 8, 1976. Defendant was later sentenced to life imprisonment at hard labor. On appeal defendant relies upon six assignments of error for reversal of his conviction and sentence. Finding no merit to these assignments, we affirm.

An eyewitness testified that she heard voices in front of her house about noon and went to the door to see who it was. There she saw defendant arguing with the decedent. She went back inside her house, but returned about five minutes later, in time to see defendant shoot decedent in the head repeatedly.

Assignment of Error No. 3

In this assignment defendant contends the trial judge improperly limited his cross-examination of the State’s principal witness, Bernita Holmes.

Ms. Holmes identified the perpetrator, whom she called “Reesey,” as the defendant, a man she had known for about twenty-five years.

On cross-examination, defense counsel questioned the witness in an attempt to discredit the identification:

“Q Now, you say that you know “Rees-ey” all of your live (sic)?
A Uhhuh.
Q Where did you live — where did he live on (sic) August of 1971?
A I don’t know. I stays to myself where I stays.
Q You know him for how many years then?
A About 25 years.
Q How old are you now?
A 25.
Q So, you knew him from the day that you were born?
A No, not really.
Q So, you don’t know him for 25 years, is that right?
A Well, I know him long enough. I know his face.
Q When is it that you think that you first met “Reesey”?
A I don’t remember.
Q Where did he live when you first met him?
A I don’t know.
Q What school was he going to when you first met him?
A Danneel, I think.
Q Danneel, and what year was that? A I don’t remember.
Q Well, was it in 19—
A I don’t remember.
Q Did you go to any other schools with him?
A No.
Q That is the only school?
A Right.
Q And, what grade were you in Dan-neel?
A I went to kindergarten to sixth grade.
Q All right. And, what year did you start kindergarten?
A I don’t remember that either,
Q What year did you start school?
A I don’t remember that either.
Q How old were you when you started school?
A Five, I guess.
Q You don’t know that. What year were you born in?
A ’51.
Q So, then you would have started school in 1956?
A If you say so.
Q When did you first start going to school with Maurice Gibbs?
A I don’t remember.
Q And, you stayed in school until how long the sixth grade?
A Uhhuh.
Q Did you pass each year?
A No.
Q Well, how many times were you held back?
BY MR. MESSINA: [Assistant District Attorney]
Your Honor, I am going to object to this. I think that this is totally irrevevant (sic).
BY THE COURT:
Objection sustained.
BY MR. MERRITT: [Defense Attorney] Please note an exception, Your Honor. The crux of this matter is that she doesn’t know Maurice Gibbs. We are trying to attempt to show that she doesn’t. Do you wish to reconsider your ruling, Your Honor?
BY THE COURT:
No. Objection sustained.
BY MR. MERRITT:
Q Did you finish school in 1957 then?
A No.
Q Did you leave Danneel School in 1958? BY MR. MESSINA:
Your Honor, I am going to object again, Your Honor, for the same reason — the relevancy of all of this.
BY THE COURT:
Mr. Merritt, approach the bench.
BY THE COURT:
Everyone just remain where you are.
# * * $ * #
BY THE COURT:
Let the record reflect that we are — and the defendant are in chambers.
BY MR. MESSINA:
I object to the line of questions about the school. I think that it is all irrelevant to this case.
BY THE COURT:
The witness has made some indications that she knew him for a number of years. She mentioned 25 years and upon further questioning she — the defense attorney made some comment as to the fact that she knew him the first day that she was born. I think the whole line of questioning has gotten down to a point about when she finished school and it is becoming very antagonistic. That has very little to do with this as far as the question at issue. Make your objection.
BY MR. MERRITT:
I would like to note an exception to the Court’s ruling, Your Honor.”

When the trial resumed, defense counsel continued to question the witness as to when and under that circumstances she had seen the defendant over the past several years. Although receiving vague responses to these questions, the defense attorney abandoned that line of questioning and concentrated on ascertaining what Ms. Holmes had seen at the time of the shooting. The nature and extent of Ms. Holmes’ familiarity with the defendant was never established.

R.S. 15:275 provides:

“In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.”

Further, R.S. 15:494 provides: “It is not competent to impeach a witness as to collateral facts or irrelevant matter.” Counsel was permitted to show that the witness only went to the sixth grade when she attended the same school the defendant had attended. He was not permitted to show the number of times she was “held back,” nor when the witness “finished” school. The only possible relevance we can discern in the line of questioning which was terminated by the trial judge was a possible defect in the capacity of the witness to observe and relate facts. (Impeachment, 21 Loyola L.Rev. 346, 352 (1975)). A defect in the capacity of the witness is neither argued nor suggested in brief, and we find no error in the action of the trial court in sustaining the objection to the cross-examination on collateral facts and irrelevant matters.

Assignments of Error Nos. 6, 7 and 8

Three assignments are submitted complaining of the charge to the jury. However, the record does not conform to the objections argued in brief. The record seems not to contain a verbatim transcript of the charge as given, but includes copies of pages from the judge’s notebook of charges, and some of-defendant’s requested charges, which bear notations indicating that some of the requested charges were given. For instance, the notation on defendant’s requested charge # 6 (the entire article 804 of the Code of Criminal Procedure) is: “Granted Para # 2 read.”

One of the charges to which defendant objected is patently erroneous and should not be given. However, defendant did not complain of the erroneous part of the instruction, but only of the omission from the instruction that the jury could not go outside the evidence to convict. A reading of the charge as a whole discloses that the matter was adequately covered, and that there was no merit in this objection.

Finally, the requested charge as to identification evidence was not wholly correct and was adequately covered by the charge given.

These assignments are without merit.

Other Assignments of Error

The remaining assignments are insubstantial.

No. 1 — Defendant does not show or even allege that a particular class of people has been discriminated against in the selection of the petit jury venire. State v. Dai-gle, 344 So.2d 1380 (La.1977). Therefore, we cannot say that use of voter registration lists and lists of volunteers as the sole source denied defendant a right to a jury of a cross section of the community.

No. 2 — We have previously determined that C.Cr.P. 784 is applicable to the criminal courts in Orleans Parish, State v. Hoffman, 345 So.2d 1 (La.1977), and thus there was error in calling prospective jurors in the order their names appeared on a list submitted by the jury commissioner rather than by lot in open court. However, in Hoffman we ruled that our construction and reconciliation of C.Cr.P. 409.1 and 784 would only have prospective application to cases in which a jury panel was selected after Hoffman became final (April 26,1977) except for cases that had been submitted to this court for decision by April 26,1977 (this appeal was lodged in October, 1977). Therefore, Hoffman has no application to the instant case.

For the reasons assigned, defendant’s conviction and sentence are affirmed.

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

      . The plain reference from the instruction is that the jury is limited to evidence before it to support a reasonable doubt. Reasonable doubt may be based on the lack of evidence in the case. C.Cr.P. 804, subd. A(2). The jury was instructed as follows:
      “You are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the defendant, but must confine yourselves strictly to a dispassionate consideration of the testimony given upon the trial. You must not resort to extraneous facts or circumstances in reaching your verdict. That is, you must not go beyond the evidence to find facts or circumstances creating doubts, but must restrict yourselves to the evidence that you heard on the trial of this case.” The jury is entitled to acquit because it disbelieves witnesses, because it is not convinced beyond a reasonable doubt, because of a lack of evidence as to an essential element of the crime, etc. The jury is not restricted to the evidence adduced from the witness stand for the creation of a reasonable doubt.
      We do not understand the holding in State v. Ferguson, 240 La. 593, 124 So.2d 558 (1960), in which a part of the charge given was similar to the one under consideration, to be to the contrary.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Peter J. PICHLER.
    No. 60791.
    Supreme Court of Louisiana.
    March 6, 1978.

      A. J. Boudreaux, Staff Appeals Atty., 24th Judicial Dist., Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director and Asst. Dist. Atty., Roy F. Blon-deau, Jr., Asst. Dist. Atty., Research and Appeals Div., for plaintiff-appellee.
   CALOGERO, Justice.

Peter J. Pichler, Kerry R. King and Timothy L. Lehmann were charged in the same bill of information with the crime of “simple burglary of a pharmacy located at 246 Metairie Road, Metairie, Louisiana belonging to Metairie Pharmacy, owned by Joseph Tobin” in violation of La.R.S. 14:62.1. Pi-chler and King were jointly tried by a jury and found guilty as charged. Defendant Pichler was sentenced to nine years at hard labor without benefit of parole, probation or suspension of sentence. Defendant appealed his conviction relying upon six assignments of error presented in three arguments for reversal of his conviction and sentence.

The appeals of this defendant Pichler and his trial co-defendant King were docketed separately in this Court, briefed separately by their respective counsel, argued and reviewed separately. The conviction and sentence of Kerry King has this day been affirmed in an opinion rendered in State v. King, 355 So.2d 1305 (La.1978) Nos. 60,732 and 60,733. The facts concerning this burglary and this defendant’s participation therein are set forth in that case and will not be repeated here.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

Defendant contends the trial judge erred in permitting the state to introduce in evidence a pillow case, several bottles of prescription drugs and a wallet. He argues that these items were not properly identified, either visually or by chain of custody, as being related to the case. These identical assignments were taken by trial co-defendant Kerry King and argued in that appeal. In fact in brief in this case Pi-chler’s attorney quotes in full the objection made at trial by King’s attorney in which he joined and relies upon the identical basis with objection and argument in this case as did King in the latter’s appeal.

We treated the issue fully in assignment of error number five in State v. King, 355 So.2d 1305 at 1309 and adopt that treatment herein by reference.

The assignments are without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment defendant contends that the trial court erred in denying his motion to quash the bill of information. In that motion defendant contends that the bill of information was defective in that it failed to apprise him of the charge against him as required by Code of Criminal Procedure Article 464 and Article 1, section 13 of the Louisiana Constitution of 1974. The defect alleged by defendant in the bill was its failure to state that the defendant entered the premises “with the intent to commit the theft of any drug which is defined as a controlled dangerous substance in R.S. 40:461(7) [40:961(7)] . . . .”

The state initially contends that defendant is precluded from making such a contention because he purportedly expressed that the state’s responses to certain preliminary motions satisfied his concerns about the sufficiency of the bill of information. What defense counsel was referring to when he stated he was satisfied is not entirely clear although arguably he may have been referring to the sufficiency of the bill of information. In any event defendant’s attorney did stipulate at trial that he had been given complete access to the state’s file, and we consider this fact significant in resolving whether or not defendant was prejudiced in preparation of hip defense by an insufficient recitation of the essential facts constituting the offense charged.

Article 464 of the Code of Criminal Procedure provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

In State v. Randolph, 334 So.2d 687, 689 (La.1976) this Court made the following analysis of the elements necessary to establish the sufficiency of an indictment:

This Court previously held the indictment to strict requirements and judged it with a hypertechnical eye in order to safeguard the accused’s constitutional right to “be informed of the nature and cause of the accusation against him.” Art. I, § 13, La.Const. of 1974; Art. 1, § 10, La.Const. of 1921. But as we said in State v. James, supra, the defendant’s right to learn before the trial of the particulars of the offense for which he is to be tried can be adequately protected by the bill of particulars and other discovery devices. The constitutional provision should not be restricted to meaning that the defendant must be informed by indictment of the nature and cause of the accusation against him. See Justice Tate’s concurring opinion in State v. Clark, 288 So.2d 612 (La.1974). We therefore concluded in State v. James, 305 So.2d 514, at pp. 516-517, that:
“ * * * [WJhere in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.”

The bill of information filed in the present case charged defendant with having “violated R.S. 14:62.1 by committing a simple burglary of the pharmacy located at 246 Metairie Rd., Metairie, LA, belonging to Metairie Pharmacy, owned by Joseph To-bin.” Unlike the defendants in Randolph and James, supra, defendant objected prior to verdict by moving to quash the bill of information. He thus preserved his procedural right to assign error to the trial court’s ruling. Nonetheless we are not persuaded that there is merit in defendant’s contention.

Defendant was charged with simple burglary of a described pharmacy and told that in doing so he had violated R.S. 14:62.1, a statute which in defining simple burglary of a pharmacy relates in effect that it is with intent to steal controlled dangerous substances. Were the particulars of the offense obscure he had available motion for bill of particulars. In fact he was given full access to the district attorney’s file and expressed satisfaction with at least this cooperative disclosure, if not with the sufficiency of the bill of information.

While defendant here did not, as in James, neglect to raise his objection he was, as in James, fairly informed of the charges against him, was not prejudiced by surprise or lack of notice, and is protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

At trial defendant did not file a motion for a directed verdict, perhaps for the quite valid reason that Article 778 had been amended prior to trial to provide that directed verdicts are no longer available in cases tried by jury. He did make a motion for a new trial based upon a contention that some of the jurors were asleep during the trial and closing arguments. The issue of lack of evidence was not raised in the lower court by this defendant either at trial or in post-trial motion for a new trial.

In this Court in brief the defendant in his assignment of error contends that the trial judge erred in denying his new trial motion purportedly founded upon a contention that the prosecution had not proven each element of the crime allegedly committed by the defendant in violation of R.S. 14:62.1. He has not assigned as error nor argued in brief the substance of that which was in fact the basis of his motion for new trial, namely the sleeping jurors.

Because the argument presented in the assignment of error and in brief is not in support of any issue preserved at trial or post trial and because the substance of the motion for a new trial which was in fact filed in the lower court has not been presented in assignment of error or in brief, there is nothing before this Court to review.

Nonetheless we find upon review of the contentions that they are without merit.

For the foregoing reasons the conviction and sentence of defendant are affirmed.

Decree

Conviction and sentence affirmed.

      . This is presuming, as we did earlier herein, that he did not waive the asserted deficiency by expressing satisfaction with the bill of information.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Kerry R. KING.
    Nos. 60732 and 60733.
    Supreme Court of Louisiana.
    March 6, 1978.

      Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Director, Research and Appeals Div., for plaintiff-appellee.
   MARCUS, Justice.

Kerry R. King, Peter J. Pichler, and Timothy L. Lehmann were charged in the same information with the crime of simple burglary of a pharmacy in violation of La.R.S. 14:62.1. King and Pichler were jointly tried by a jury and found guilty as charged. After the convictions, but prior to sentencing, the district attorney filed an information accusing defendant King of a previous felony conviction under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the court found defendant to be an habitual offender and sentenced him to serve fourteen years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, Kerry R. King relies on eleven assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in excusing a prospective juror for cause after the juror stated that she would be unable to render a verdict in the case because, under the guiding principles of her religion, she could not judge her fellowman.

Contrary to defendant’s assertion, the record reflects that the prospective jur- or was not excused for cause but, rather, was excused as a result of a peremptory challenge made by the state. The motive for the exercise of peremptory challenges ordinarily is not subject to judicial review. State v. Haynes, 339 So.2d 328 (La.1976); State v. Nix, 327 So.2d 301 (La.1975); State v. Carter, 301 So.2d 612 (La.1974). Accordingly, Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in permitting Deputy Robert Fuselier to testify that he saw defendant on the day that the crime was committed in that this testimony was irrelevant.

The record reflects that during the early morning hours of October 20, 1975, while enroute to an investigation in Jefferson Parish, two New Orleans police officers noticed a vehicle occupied by three men parked alongside of a Metairie drugstore. After one of the occupants exited the vehicle and walked toward the pharmacy’s front entrance, the other two men drove off but passed in front of the store several times. After observing these activities, the officers departed the scene intending to notify Jefferson Parish police officials of the incident. Meanwhile, in response to an ADT alarm triggered at the pharmacy, Jefferson Parish Deputy Fuselier arrived at the scene and, after noting that the door to the store was slightly ajar, requested assistance. Leh-mann, defendant’s alleged co-participant in the crime, was subsequently arrested inside of the pharmacy. Having observed the arrival of Jefferson Parish police at the drugstore, the two New Orleans officers returned to the store and related to the Jefferson police that they had seen a car occupied by two men circling the area. They then observed the Jefferson police bringing Lehmann out of the drugstore. At that moment, the same vehicle was spotted by the two officers travelling toward the Orleans Parish line. The New Orleans police' officers pursued the vehicle and apprehended the two suspects, later identified as defendant and Peter Pichler, in Orleans Parish. A wallet containing Lehmann's identification was recovered from the front seat of the vehicle. The suspects were then returned to the pharmacy where they were surrendered to the Jefferson Parish deputies.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). In the instant case, the testimony of Deputy Fuselier that he had seen defendant and Pichler on the day of the burglary corroborated the testimony of one of the New Orleans police officers that defendant and Pichler were taken to the pharmacy and surrendered to the Jefferson Parish police after they were apprehended in Orleans Parish. As such, the testimony was relevant and admissible. La.R.S. 15:441. Hence, the trial judge did not abuse his discretion in permitting the witness to testify to this fact.

Assignment of Error No. 2 lacks merit.

ASSIGNMENT OF ERROR No. 3

Defendant contends the trial judge erred in permitting Deputy Robert Fuselier to testify, over defense objection, about a written inventory taken by him of bottles of prescription drugs found in a floral pillowcase at the scene of the burglary. He argues that this testimony constituted inadmissible hearsay evidence.

Hearsay evidence is testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. C. McCormick, Evidence, § 246 (Cleary ed. 1972).

In the presént case, the inventory of the items found in the pillowcase was made and written down by Deputy Puselier. The owner of the pharmacy was present at the time and participated in the taking of the inventory. Hence, Deputy Fuselier’s testimony relative to the taking of the inventory was based upon facts within his knowledge (La.R.S. 15:463) and did not constitute hearsay. State v. White, 247 La. 19, 169 So.2d 894 (1964). Moreover, the owner of the pharmacy also testified at trial concerning his participation in the taking of the inventory and was subject to cross-examination by the defense. Accordingly, the trial judge properly permitted Deputy Puselier to testify as to the inventory.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OP ERROR NO. 4

Defendant contends the trial judge erred in permitting a state witness to testify as to what constitutes a controlled dangerous substance. He argues that, since the witness was not shown to have any special training or experience in this particular matter, his testimony was inadmissible opinion evidence.

Joseph Tobin, a pharmacist and owner of the burglarized pharmacy, testified that he was specially licensed to dispense controlled dangerous substances and did in fact dispense them at his pharmacy. In response to questioning by the state, the witness related that he dispensed opiates, morphene base drugs and barbiturates. He was then asked whether to his knowledge those drugs are controlled dangerous substances. Defendant’s objection to this inquiry was overruled by the trial judge and the witness was allowed to testify as to what is a controlled dangerous substance.

In the instant case, the witness was a pharmacist and was specially licensed to dispense controlled dangerous substances, which he in fact did store and dispense at his pharmacy. In view of his training and experience, the witness was qualified to give testimony relative to what constitutes a controlled dangerous substance. La.R.S. 15:464. Hence, the trial judge did not err in permitting the witness to so testify.

Assignment of Error No. 4 lacks substance.

ASSIGNMENT OP ERROR NO. 5

Defendant contends the trial judge erred in permitting the state to introduce in evidence a pillowcase, several bottles of prescription drugs and a wallet. He argues that these items were not properly identified, either visually or by chain of custody, as being related to the case.

When Lehmann, defendant’s co-participant in the crime, was apprehended in the pharmacy, a yellow floral pillowcase containing numerous bottles of prescription drugs was found on the floor of the pharmacy by Deputy Puselier. With the assistance of Joseph Tobin, owner of the pharmacy, Deputy Fuselier inventoried the bottles and thereafter placed them back into the pillowcase. The pillowcase was then tied, marked with an evidence tag bearing Deputy Fuselier’s signature and stored in the evidence locker at the police station. Similarly, when defendant and Pichler were apprehended by Officer Morse, a wallet belonging to Lehmann was recovered by Officer Morse from the front seat of the vehicle driven by defendant. The wallet was surrendered by Morse to the Jefferson Parish police on the following evening. Thereafter, Deputy Fuselier transferred the wallet along with the pillowcase and bottles of prescription drugs to the deputy clerk of court who sealed the items in a box where they remained until the day of trial.

At trial, Deputy Fuselier positively identified the pillowcase as the one he recovered on the night of the crime and testified that the bottles of prescription drugs displayed to him were similar in appearance to those found in the pillowcase. In addition to identifying the pillowcase, Tobin was able to positively identify the majority of the bottles contained therein as those sold at his pharmacy by the price code markings placed by him on the bottles prior to the commission of the crime. Officer Morse positively identified the wallet as the one recovered by him from the front seat of the car driven by defendant. Over defense objection, the trial judge allowed the pillowcase, the bottles of prescription drugs and the wallet to be admitted in evidence.

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. Provost, 352 So.2d 661 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the jury. State v. Hayes, 306 So.2d 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, supra; State v. Wright, 254 La. 521, 225 So.2d 201 (1969).

Defendant’s contention that these items were not properly identified, either visually or by chain of custody, as being related to the case is without merit. The witnesses made positive visual identifications of the pillowcase, the majority of bottles of prescription drugs and the wallet as items recovered by the police on the night that the crime was committed. Moreover, the evidence was properly stored from the time of recovery until brought to the court on the day of trial. Clearly, it was more probable than not that the pillowcase, the bottles of prescription drugs and the wallet were related to the case. Hence, the trial judge properly permitted their introduction in evidence.

Assignment of Error No. 5 lacks substance.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in denying his motion for a directed verdict made at the close of the state’s case on the ground that the state introduced no evidence of an essential element of the crime, i. e., the unauthorized entry of the pharmacy by defendant.

This matter was tried by a jury on January 12, 1976. La.Code Crim.P. art. 778 was amended by Act No. 527, § 1 of 1975, effective September 12, 1975, to eliminate the authority of the trial judge to direct a verdict of not guilty in a jury trial. This amendment being procedural in nature is applicable to this trial which was held after the amendment’s effective date. State v. Schouest, 351 So.2d 462 (La.1977); State v. Spears, 350 So.2d 603 (La.1977); State v. Domangue, 350 So.2d 599 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Clark, 340 So.2d 208 (La.1976); State v. Marmillion, 339 So.2d 788 (La.1976). Accordingly, the trial judge had no authority to grant defendant’s motion for a directed verdict.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Testifying at trial in his own defense, defendant denied on direct and redirect examination by defense counsel that he had any knowledge that Lehmann planned to burglarize the pharmacy. At the close of the redirect examination, defense counsel objected to any recross-examination of his client by the state. The objection was overruled. The state then proceeded to recross-examine defendant in an attempt to establish that in fact he did know that Lehmann intended to burglarize the store. At the conclusion of the recross, the trial judge offered defense counsel the opportunity to ask further questions of the witness. Defense counsel assigns as error the trial court’s allowance of recross-examination of defendant by the state.

The matter of permitting recross-examination is in the sound discretion of the trial judge. State v. Calloway, 324 So.2d 801 (La.1975); State v. Gordier, 297 So.2d 181 (La.1974); State v. Shirley, 256 La. 665, 237 So.2d 676 (1970). In the absence of some showing of an abuse of discretion, and resulting prejudice, his rulings will not be overturned. State v. Cordier, supra; State v. Shirley, supra. In the present ease, there is no showing that the trial judge abused his discretion. Moreover, the recross was properly within the scope of the redirect examination, and defense counsel was offered an opportunity to ask further questions after the recross had been completed. Accordingly, the trial court’s allowance of recross-examination of defendant by the state was not error.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in denying his motion for a new trial in which he alleged, inter alia, that a member of the jury periodically fell asleep during trial, particularly during the trial judge’s charge to the jury, and that at least two of the jurors who voted to convict defendant did not hear and/or understand the jury instructions. He argues that these constituted prejudicial errors or defects in the proceedings which warranted the granting of a new trial.

At the hearing on the new trial motion, defense counsel asserted that, during the course of trial and particularly while the trial judge was charging the jury, he, defendant and Pichler observed a juror sleeping and that they would so testify at the hearing. He further asked that he be permitted to call members of the jury to testify at the new trial hearing in order to show that there existed confusion among members of the jury during their deliberations as to the instructions given to the jury by the trial judge. The trial judge denied defendant’s motion to call jurors to testify at the hearing and his motion for a new trial.

La.Code Crim.P. art. 851 provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or

Defendant’s contention that he is entitled to a new trial on the ground that prejudicial error was committed when a juror allegedly fell asleep during trial is without merit. Although defense counsel alleged that he, defendant and Pichler observed the juror’s conduct before the jury retired for its deliberations, no objection was made at the time. Defendant’s failure to raise the allegedly prejudicial error or defect in the proceedings prior to verdict contravenes the terms of articles 851 and 855 of the Code of Criminal Procedure which allow the defendant to raise an alleged error or defect in the proceedings on a motion for a new trial only if it appears that, notwithstanding the exercise of reasonable diligence by the defendant, the error or defect was not discovered before the verdict. Here, the alleged error or defect was discovered before the verdict. Hence, it cannot properly be raised on a motion for a new trial. Moreover, article 841 provides that an irregularity cannot be availed of after verdict unless it was objected to at the time of occurrence. Also, the trial judge noted in denying the motion for a new trial that he carefully observed the jury during the trial (including his charge to the jury) and that the jurors were “wide awake and paying attention.”

We also consider that the trial judge correctly denied defendant the right to question members of the jury relative to the deliberations of the jury in reaching its verdict. It is well settled that a juror may not impeach the verdict of a jury of which he was a member. La.R.S. 15:470. State v. Williams, 346 So.2d 181 (La.1977); State v. Credeur, 328 So.2d 59 (La.1976); State v. Hatch, 305 So.2d 497 (La.1974). Hence, the second ground for defendant’s motion for a new trial, i. e., that at least two members of the jury who voted to convict defendant did not hear and/or understand the jury instructions given by the trial judge, is equally without merit.

In sum, the trial judge properly denied defendant’s motion for a new trial.

Assignment of Error No. 8 has no merit.

ASSIGNMENTS OF ERROR NOS. 9 AND 10

In these assignments of error, defendant contends that the Habitual Offender Law, La.R.S. 15:529.1, violates the federal and state constitutions in that it subjects a convicted offender to double jeopardy and imposes cruel and unusual punishment.

This contention has been addressed in several decisions of this court. State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977); State v. Linkletter, 345 So.2d 452 (La.1977); State v. Badon, 338 So.2d 665 (La.1976); State v. Jolla, 337 So.2d 197 (La.1976); State v. Bullock, 329 So.2d 733 (La.1976); State v. Harvey, 329 So.2d 731 (La.1976); State v. Walker, 328 So.2d 87 (La.1976); State v. Williams, 326 So.2d 815 (La.1976); State v. Boatner, 304 So.2d 661 (La.1974). For the reasons expressed therein; it is without merit.

Assignments of Error Nos. 9 and 10 lack substance.

DECREE

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

      . Defendant has neither briefed nor argued Assignment of Error No. 11. Therefore, we consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Lawrence RILES, Appellant.
    No. 60841.
    Supreme Court of Louisiana.
    March 6, 1978.

      John M. Lawrence, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of simple robbery, La.R.S. 14:65, and sentenced, as a multiple offender, La.R.S. 15:529.1, to ten years at hard labor. He appeals, making eight assignments of error.

Assignments 1, 2, and 7 present the principal issues of the appeal. They relate to the lawfulness of the defendant’s arrest.

A serviceman was robbed at the Greyhound bus depot. Two policemen searched in the vicinity for a person meeting the description of the robber. Eight blocks away, they observed the defendant, who met the description — dressed in maroon pants and jacket, big hat, and with heavy mustache and goatee.

They testified that they asked the defendant to come back to the bus depot. They first informed him he was a suspect in an armed robbery, because he met the description of the robber. The defendant came back with them voluntarily. The victim immediately identified him as the robber.

The defendant was arrested. He then told the officers he had merely threatened the victim, not used a gun.

After he was brought to the police station, money identified as that stolen was found in his socks, in the course of a search of his person. The officers further testified that they fully informed the defendant of his Miranda rights, both following the initial detention eight blocks from the robbery and again following the arrest.

This testimony thus shows an initial stop for investigation based upon reasonable belief that the accused may have committed an offense, a voluntary return to the scene of the robbery, a lawful arrest following the victim’s identification of him as the robber, a voluntary statement of an inculpatory nature following the arrest, and the discovery of the stolen money in the course of a lawful search of his person subsequent to a custodial arrest.

We find no error in the trial court’s acceptance of the officers’ testimony to this effect and in its rejection of the accused’s testimony to the contrary. These assignments of error are without merit.

The other assignments urged are equally without merit:

Assignment 3: The trial court did not abuse its discretion in denying a motion, made on the day fixed for the trial, for a transfer of the case to another section and for the withdrawal of counsel. Assignment 4 : Likewise, no error or abuse of discretion is shown by the trial court’s removal of the accused from the courtroom after he cursed the judge and struggled with the sheriffs and otherwise disrupted the trial, with the court repeatedly offering the accused the right to return if he promised to behave (which he would not). Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Assignment 5: The question objected to was not leading. Assignment 6: The motion for new trial (based upon the above alleged errors) was properly denied. Assignment 8: The motion to quash the multiple-offender bill, based upon reasons repeatedly rejected by this court, was properly denied.

Decree ■

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: SANDERS, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Revert WESTERN.
    No. 60586.
    Supreme Court of Louisiana.
    March 8, 1978.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Sheila C. Myers, Asst. Dist. Attys., for appellee.
   SANDERS, Chief Justice.

A grand jury indicted the defendant, Revert Western, for murder and aggravated rape, violations of LSA-R.S. 14:30 and 14:42. A jury found him guilty as charged. The court sentenced him to two consecutive life sentences.

The defendant appeals. He relies on twenty-one assignments of error for reversal of his convictions and sentences.

We adduce the following context facts:

The defendant and his accomplice gained access to Beelee Smith’s car by thrusting a gun into the driver’s window. The rape victim was Smith’s passenger. They robbed Smith and held their victims at gunpoint. After dropping his accomplice off, the defendant drove- to a wooded area and shot Smith four times in the head. Thereafter, he drove the rape victim to an apartment complex. While wielding a gun, he raped her.

The offenses occurred on January 15, 1972. The trial took place on May 13,1976.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3, AND 5

The defense contends that the court improperly denied his motion to quash and his motion to elect. He advances three grounds in support of his contention.

Initially, he alleges that the grand jury venire did not include residents of a' housing project and individuals who had not registered to vote. To support a challenge made to the composition of a jury venire, the defendant must demonstrate that there has been a systematic exclusion of a class of persons in the selection of the jury panel, or that the State has failed to comply with the statutory procedures for selection of the panel. State v. Taylor, La., 347 So.2d 172 (1977); State v. Haynes, La., 339 So.2d 328 (1976); State v. Jones, La., 332 So.2d 461 (1976).

As he offered no evidence of exclusion of the housing project residents, he has failed to sustain the burden of proof. The State and defense stipulated that, since February, 1975, the jury commissioner chose the venire from registered voters and a small number of volunteers. Other relevant evidence upon which counsel relies is a Loyola University Political Science Department poll which indicates that approximately 20% of Louisianians are unregistered voters; that an unregistered voter is “more likely to be under thirty years of age, poorly educated, low income, a city dweller, and a resident of the Orleans Metropolitan area”; and that blacks constitute a much higher proportion of unregistered voters than they do of the total adult population. Such evidence does not satisfactorily prove a historic or arbitrary discrimination of an identifiable segment of the community. See State v. Lawrence, La., 351 So.2d 493 (1977); State v. Daigle, La., 344 So.2d 1380 (1977).

Secondly, he contends that several amendments to Code of Criminal Procedure Articles 814 and 817 make it impossible to determine which verdicts were applicable to the prosecution, and thus the defendant was prejudiced in his trial preparations. The court gave counsel the verdicts during voir dire examination, prior to the taking of any evidence. The defendant did not then complain of the allegedly tardy announcement of verdicts or of the verdicts given by the court. As he has failed to establish prejudice, we reject his argument.

Thirdly, he avers that the State improperly joined the murder and aggravated rape charges because the offenses have different classifications and victims and occurred at different times and locations. He also contends that the application of Act 528 of 1975, an amendment to Code of Criminal Procedure Article 493, constitutes an ex post facto law.

That amendment controls the present prosecution and does not violate the prohibition against ex post facto laws. State v. Sepulvado, La., 342 So.2d 630 (1977). The article allows joinder when the offenses “ . . . are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; . .”

The murder and aggravated rape were separate acts constituting parts of a common scheme. Moreover, the joinder did not prevent a fair determination of the defendant’s guilt on each offense. See LSA-C. Cr.P. Art. 495.1. The State proved distinct and separate elements of each crime, and presented the evidence so the jury could easily distinguish the proof and the defendant’s guilt of each. See State v. Proctor, La., 354 So.2d 488 (1977).

We hold that the court properly denied the motion to quash and the motion to elect.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

Prior to voir dire examination, the de-, fendant orally moved for a continuance on the grounds that he wanted to take a polygraph test and wanted a line-up. He contends that the victim saw him while moving to a different courtroom, and, therefore, a line-up would insure a true identification of the assailant by the only eye-witness. The court denied the motion.

An oral motion for a continuance presents nothing for our review. LSA-C. Cr.P. Art. 707; State v. Walker, La., 344 So.2d 990 (1977); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972). Assuming ar-guendo that he properly presents his contention, we conclude that the court properly denied the motion. Polygraph tests are inadmissible, and the defendant made no evi-dentiary showing that the victim saw or recognized him while changing courtrooms. See State v. Davis, La., 351 So.2d 771 (1977).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

The defense alleges that the court improperly selected the jury venire by calling them in the order listed on the jury list.

In State v. Hoffman, La., 345 So.2d 1 (on rehearing, 1977), we reversed because this procedure violated Louisiana Code of Criminal Procedure Article 784 which requires that the jury panel be drawn indiscriminately and by lot in open court. However, we gave our ruling prospective application only. As this jury panel was drawn prior to Hoffman’s finality, we reject his allegation.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

Officer Knight testified that the victim described her assailant as wearing a long, dark overcoat, but that she was unable to describe his pants or shirt. When defense counsel asked if the victim described his shoes, the State objected to this “line of questioning” on the basis that the victim’s testimony would be the best evidence of her description. Defense counsel countered that this information was necessary for him to test the victim’s description on cross-examination. The court sustained the State’s objection.

Assuming error, the defendant was not prejudiced. LSA-C.Cr.P. Art. 921; State v. Alexander, La., 351 So.2d 505 (1977). On recross, defense counsel elicited the very information which was the subject of the objection: the victim did not describe her offender’s shoes. In addition, he learned that she told Officer Knight that he was a thin, black man with no facial hair, an afro haircut, and that he was five feet, eight inches tall.

ASSIGNMENT OF ERROR NO. 8

On direct, Officer Knight testified that two years after the offense Houston officers notified him that they had the defendant in custody. On cross, he stated that he went to Houston. On redirect, the State asked if he brought the defendant back from Houston. The defendant objected to it as irrelevant. The State and defendant disagreed as to whether Officer Knight testified that he was in Houston, and the court stated:

“Answer the question, sir. I remember that.” [Vol. 2, p. 155.]

The defense moved for a mistrial, alleging that the court commented on the evidence. The court denied it.

The judge may not comment on the facts of a case in the presence of the jury. LSA-C.Cr.P. Art. 772. The judge’s statement that he remembered prior testimony, without stating such testimony, is not a comment on the facts. In any event, the statement made in the ruling was not prejudicial. See State v. Guillot, La., 353 So.2d 1005 (1977).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 9

When the defense counsel cross-examined the victim, he attempted to shake her positive identification of the defendant. On redirect, the State asked if she would identify the defendant if she “were not sure he was the one.” [Vol. 2, p. 217.] Defendant objected on the ground that the question was one exclusively for the jury. The court overruled it.

The question was designed to test the strength of the identification. It was proper redirect examination as the witness explained her testimony given on cross-examination. LSA-R.S. 15:281; State v. Hollingsworth, La., 337 So.2d 461 (1976). The court properly overruled defendant’s objection.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 10

The State introduced S-2, a picture of the murder victim at the scene of the crime. The defendant stated that he had no objection. However, when the jury viewed the exhibits, the defendant asked that S-2 be called back, stating that the jury should not see the “trauma of the picture.” [Vol. 2, p. 226.] The court overruled the objection and the defendant assigns it as error.

In State v. James, La., 339 So.2d 741 (1976), we treated a similar situation as follows:

“The general rule is that the trial jury is entitled to view photographic evidence introduced during the trial. In its fact-finding and guilt determination function, it is entitled to the benefit of all the evidence.
“Thus, the trial judge did not err in allowing the jury to see the photographs. The defense arguments more properly relate to the admissibility of the photographs. The arguments, of course, are not viable since the photographs were admitted into evidence without objection.”

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 11

The defense called the defendant’s sister as a witness. The State objected on the basis that she was present during the entire trial, and thus violated the court’s sequestration order. Defense counsel explained that he did not summon her as a witness because he did not know the defendant had a sister. The judge allowed counsel to question her out of the presence of the jury for purposes of his ruling. She testified that the defendant always wore a mous-tache and an afro haircut. The court refused to allow her to testify.

The object of sequestration is to encourage development of the true facts by preventing witnesses from being influenced by the testimony of other witnesses and by protecting the role of cross-examination. State v. Holmes, La., 305 So.2d 409 (1974); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971). The trial court has the discretion to disqualify a witness for non-compliance with the order of sequestration. State v. Calloway, La., 343 So.2d 694 (1976); State v. Holmes, supra; State v. Williams, La., 271 So.2d 857 (1973). The ruling of the trial judge is entitled to great weight.

The defendant’s sister was present during the trial and heard all evidence, including the critical testimony of the victim. The defendant’s object was to discredit the victim’s identification that he had no facial hair and had a flat top haircut. His sister’s description was that he always wore a moustache and an afro haircut, a direct contradiction of the victim’s testimony, which she had heard. Moreover, the defendant’s mother and girlfriend testified that he had a moustache and an afro haircut. Under the circumstances, we find no abuse of discretion.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 12

The State asked the defendant’s mother why she failed to tell someone that her son was innocent and that he had an alibi witness. Defense counsel immediately stated:

“I haven’t objected before, I will now, Your Honor.” [Vol. 2, p. 261.]

The court overruled his objection.

An assignment of error based upon an objection without an identified basis presents nothing for our review. LSA-C. Cr.P. Art. 841; State v. Sosa, La., 328 So.2d 889 (1976); State v. Powell, La., 325 So.2d 791 (1976).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 13

The defendant’s alibi was that he was recuperating from surgery at Dew Drop Inn with his girl friend at the time of the offenses. The owner of the hotel, Mrs. Painia, testified that there were no motel records for the dates surrounding the offenses.

When the defense offered the Dew Drop Inn’s books into evidence, the State objected to their admission as irrelevant. The court sustained the objection and the defendant now complains of the ruling.

This Court will not disturb a trial judge’s ruling on relevancy absent clear error. State v. Ownes, La., 301 So.2d 591 (1974), and the cases cited therein. We find no such abuse. Evidence of the defendant’s alibi is relevant, but evidence which admittedly has no probative value is irrelevant. LSA-R.S. 15:441. Mrs. Painia testified that the books did not cover the dates in question, the same fact the jury would have discovered had they viewed the books.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 14

The defendant’s mother testified that the victim told her that the name of the rapist was Revert and that she would pray to God to change her testimony because she had a son of her own. She also testified that the victim never said she was positive about her identification. On rebuttal, the State questioned the victim about what she told Mrs. Western. Defense counsel objected on the basis of improper rebuttal.

Rebuttal evidence is that which explains, repels, counteracts, or disproves facts given in evidence by the adverse party. State v. Turner, La., 337 So.2d 455 (1976); State v. Monroe, 205 La. 285, 17 So.2d 331 (1944). The victim testified that she told Mrs. Western that her son raped her and that she was positive about her identification. The victim’s testimony was proper rebuttal since it contradicted the facts presented by defendant’s mother.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 15 AND 16

In closing argument, the Assistant District Attorney stated:

“ . . . In the part of [defense’s] opening statement where he said you will learn that it will be impossible for Mr. Western to have committed the rape because he was impotent.” [Vol. 1, p. 46.]

Defense counsel objected, denying that he had said that. The court overruled it.

At the beginning of his closing argument, defense counsel requested that his opening statement be transcribed for use in that argument. The court denied the request.

He now complains of these rulings.

There is no factual basis for his initial objection. In his opening statement he twice alluded to the defendant’s physical incapacity to commit the crime. Moreover, as the remarks concerning the lack of evidence, they were proper argument. LSA-C.Cr.P. Art. 774.

Similarly, we find that the court properly denied his request to have his opening argument immediately transcribed. He neglected to apprise the judge in advance of his special need for it, and he has failed to demonstrate prejudice resulting from the court’s ruling. The court reporter has subsequently transcribed it for the record.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 17 and 18

The defendant contends that the court erred in overruling two objections raised during the State’s rebuttal closing argument.

The Assistant District Attorney stated that defense counsel knew that polygraph tests are inadmissible when he requested the State to administer one to the defendant. Defense counsel objected on the basis that the remarks went beyond the evidence. The court overruled it.

Before a verdict is set aside on the ground of improper argument, this Court must be thoroughly convinced that the remarks influenced the jury, and that the remarks contributed to the verdict. State v. Davis La., 353 So.2d 275 (1977); State v. Lee, La., 340 So.2d 180 (1976); State v. Owens, La., 338 So.2d 645 (1976). The defendant has failed to so convince us.

Secondly, he avers that he was entitled to an admonition or a mistrial when the State said that the defendant was stabbed while in parish prison and that he was a heroin addict. The court refused both, and in ruling noted that this evidence was contained in defense Exhibit No. 1, Charity Hospital records; that D-l was already admitted into evidence and seen by the jury; that counsel had twenty minutes to peruse D-l for the purpose of excluding any prejudicial information from the jury. Obviously, defendant did not exclude the evidence complained of.

The court properly denied the defendant’s requests. When the defense introduces evidence, the State is entitled to comment upon it.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 19, 20, AND 21

These arguments concern the jury charge, more specifically, the failure of the judge to give the charge as written and the denial of his requests for special charges.

The record does not contain the full charge as given by the court. Thus, we are unable to compare the charge given to the written charge in order to ascertain if the court violated Louisiana Code of Criminal Procedure Article 801.

From a transcribed discussion between the court and counsel we are able to treat his arguments concerning special charges. A review of that portion of the record and the special charges submitted indicates that the court properly refused them. Each failed to comply with the requisites of Louisiana Code of Criminal Procedure Article 807: that the special charge be wholly correct and pertinent, that it not require qualification, limitation, or explanation, and that it was not included in the general charge.

These assignments of error are without merit.

For the reasons assigned, the defendant’s convictions and sentences are affirmed.

DIXON, J., concurs.

DENNIS, J., concurs (with reasons).

DENNIS, Justice,

concurring.

The trial judge cannot exclude the testimony of a witness for disobedience of a sequestration order in the absence of particular circumstances such as the consent, connivance, procurement or knowledge of the defendant or his counsel. State v. Jones, 354 So.2d 530 (La.1978). Since the excluded witness was defendant’s sister, the defendant must have had knowledge of her presence in the courtroom during the trial. Under these circumstances, I agree that the trial judge had the discretion to refuse to allow her to testify.

I respectfully concur.


author: TATE, J.,

text:
    BOSSIER PARISH SCHOOL BOARD v. William J. GUSTE, Jr., et al.
    No. 61609.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Jackie Martin and Fred E. Shew-make, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. 355 So.2d 64.

Writ denied.

DENNIS, J., would grant the writ.

TATE, J.,

is of the opinion that the school board’s policy may be an abuse of its great discretion because of the strong legislative policies designed to permit school teachers and personnel to participate in elective government.


text:
    HOUSING AUTHORITY OF the CITY OF LAKE CHARLES, LOUISIANA v. Albert MINOR.
    No. 61590.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Housing Authority of the City of Lake Charles, Louisiana applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 355 So.2d 271.

Writ denied.


author: SANDERS, C. J.,

text:
    STATE of Louisiana v. Wendell McDONALD.
    No. 61747.
    Supreme Court of Louisiana.
    March 10, 1978.
   In re: State of Louisiana through Harry F. Connick, D.A., Parish of Orleans, applying for writ of certiorari, mandamus, prohibition and stay order.

Writ denied. The ruling is correct.

SANDERS, C. J.,

concurs in denial. The evidence, if admissible, can be established by other witnesses.


text:
    STATE of Louisiana v. 170,095, 170,097, 170,098, 170,099, 170,100, 170,101 (Contempt Proceedings against Jerry A. Kirby, Counsel for Petitioners, Dewayne C. Morris, Jr., Dewayne C. Morris, Sr., and Helen Morris).
    No. 61724.
    Supreme Court of Louisiana.
    March 16, 1978.
   In re: Jerry A. Kirby, etc., et al., applying for writ of certiorari, prohibition and mandamus. Rapides Parish.

Granted. Judgment of contempt set aside since violation not willful.


text:
    Barbara Ann BARR v. STATE of Louisiana, Through the Louisiana DEPARTMENT OF HIGHWAYS.
    No. 61617.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: State of Louisiana thru La. Department of Highways, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 355 So.2d 52.

Denied.


text:
    Barbara Ann BARR v. STATE of Louisiana, Through the Louisiana DEPARTMENT OF HIGHWAYS.
    No. 61604.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Paul D. Spurlock, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 355 So.2d 52.

Denied.


text:
    Russell Wayne EFFERSON, Individually, etc. v. Steven H. LAURIE et al.
    No. 61661.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Russell Wayne Efferson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 665.

Writ denied.


text:
    Jerry Joseph FONTENOT et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al. Robert McCONNELL et al. v. U. S. FIDELITY AND GUARANTY CO. et al.
    No. 61709.
    Supreme Court of Louisiana.
    March 17, 1978.
    Rehearing Denied April 6, 1978.
   In re: Jerry J. Fontenot et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 346 So.2d 849.

Granted. Court of Appeal judgment is reversed and the judgment debtor rule is reinstated; however, this order is not intended to affect proceedings beyond the judgment debtor examination.

SUMMERS, J., dissents.

SANDERS, C. J., SUMMERS and MARCUS, JJ., would grant a rehearing.


text:
    Gennie V. GRAHAM, Individually and as Administrator of the Estate of her minor child Michael Jerome Graham v. STATE of Louisiana, Through the Louisiana HEALTH AND SOCIAL AND REHABILITATION SERVICES ADMINISTRATION.
    No. 61696.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Gennie V. Graham, etc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.

SANDERS, C. J., would grant the writ.


text:
    Mildred Hall LOMBARDO v. ARGONAUT INSURANCE COMPANY, Donald Richardson, M. D., Methodist Hospital, Paul Byork, Susan Saucier and Brenda Bossier.
    No. 61694.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Mildred Hall Lombardo, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 731.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    MIDWAY TESTING COMPANY, INC. v. Jerry H. WOLFF.
    No. 61627.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Midway Testing Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 353 So.2d 1053.

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

SANDERS, C. J, SUMMERS & TATE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Terrill L. BEAKLE.
    No. 61688.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Terrill L. Deakle, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ granted. Out of time appeal reinstated. No authority in trial court to rescind order of appeal. La.C.Cr.P. art. 916.

DIXON, J., dissents.


text:
    STATE of Louisiana v. David DORSEY.
    No. 61704.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: David Dorsey applying for Writs of Habeas Corpus and Mandamus. Ouachi-ta Parish.

Denied.


text:
    STATE of Louisiana v. Ira JONES.
    No. 61824.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Ira Jones, applying for writs of certiorari, review, prohibition, mandamus and for stay order. Parish of Orleans.

Writ granted in part. The trial court is ordered to hold an evidentiary hearing as to bail.


text:
    STATE of Louisiana ex rel. Edward J. BENIT v. 6TH JUDICIAL DISTRICT COURT, PARISH OF EAST CARROLL.
    No. 61651.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Edward J. Benit applying for writ of mandamus. Parish of East Carroll.

Denied.

TATE, J.,

concurs. Petitioner has an adequate remedy under La.C.Civ.P. arts. 1701, 1702.


author: CHIASSON, Judge.

text:
    PRENTICE OIL AND GAS COMPANY v. Vernon L. CALDWELL, Jr., and Shell Oil Company.
    No. 11642.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied March 20, 1978.
    Writ Refused May 12, 1978.

      Stanwood R. Duval, Jr., Houma, David B. Klotz, Shreveport, for plaintiff and appellant.
    Philip J. McMahon, Houma, Robert B. Shaw, New Orleans, for defendant and ap-pellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff appeals a judgment denying its claim for damages under Article 667 of the Louisiana Civil Code for the alleged diminution in market value of its property (Cynthia Plantation) due to the construction and operation of a 16 inch high pressure gas transmission pipeline by the defendant Shell Oil Company, on the property of the defendant, Vernon L. Caldwell, Jr., whose property (Magnolia Plantation) is contiguous to and north of plaintiff’s property.

The defendants have not answered nor have they taken an appeal.

The facts giving rise to this suit are as follows: The said plantations are located on Louisiana Highway 311 in Terrebonne Parish, approximately eight miles north of Houma and seven miles southwest of Thibo-daux; Vernon L. Caldwell, Jr. granted a right of way easement to Shell Oil Company in close proximity to the boundary line between the property of Caldwell and the property of plaintiff; at all times pertinent to the suit herein, land owned by plaintiff adjacent to the pipeline is improved farm land, recreational land and drained pasture land; the said pipeline runs parallel to the northern boundary line of Cynthia Plantation from east to west a distance of 15,325.-85 feet or approximately 2.9 miles, at varying distances from 16.4 feet to 23.8 feet from the plaintiff’s property; the gas transmission line has a designed pressure of 1312 pounds; the property of defendant Caldwell runs parallel to and adjacent with the property of plaintiff for the entire length of plaintiffs northern boundary; and, the property of defendant Caldwell extends in depth to a distance of more than 300 feet north of the location of the pipeline.

Plaintiff claims that a strip of land 250 feet wide by 15,325.84 feet in depth, or approximately 87.95 acres, has sustained a diminution in market value in the amount of $161,305.00 because of the presence of Shell’s high pressure gas transmission pipeline on Caldwell’s property.

The trial court held that the highest and best use of plaintiff’s property is for farming, private recreation, and cattle grazing and that plaintiff had failed to prove any diminution of value to its property. We affirm.

The plaintiff assigns ten specifications of error committed by the trial court which can be summarized as follows:

That the trial court erred:
(1) In holding that the mere presence of a high pressure gas pipeline does not have the psychological effect of causing fear which results in a diminution in market value of the property located adjacent thereto;
(2) In holding that the highest and best use of plaintiff’s property was for agriculture, recreation and grazing and not for multi-purpose development, i. e., residential, commercial, and light industry;
(3) In holding that the plaintiff has failed to prove its damages;
(4) In failing to admit in evidence the Land Use Plan for plaintiff’s property;
(5) In failing to tax as costs the entire fee of plaintiff’s expert and the fee of the court reporter.
Article 667 provides:
“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”
Article 668 provides:
“Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
“Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s (neighbor’s) house, because this act occasions only an inconvenience, but not a real damage.”

In Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975), the Supreme Court held:

“. . . the extent of inconvenience the property owner must tolerate without redress depends upon the circumstances. When the actions or works cease to be inconveniences and become damaging is a question of fact. The problem is one which involves the nature of the intrusion into the neighbor’s property, plus the extent or degree of damage. No principle of law confines this damage to physical invasion of the neighbor’s premises — an extrinsic injury, as it were. The damage may well be intrinsic in nature, a combination of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage.” . . .

The jurisprudence of this state in expropriation proceedings is to the effect that the mere presence of a high pressure gas pipeline does have a psychological effect of causing fear which deters prospective purchasers and impairs market value of property adjoining said pipeline. Texas Pipe Line Co. v. National Gasoline Co. of Louisiana, Inc., 203 La. 787, 14 So.2d 636 (1943); Texas Pipeline Company v. Barbe, 229 La. 191, 85 So.2d 260 (1955); Texas Gas Transmission Corporation v. Hebert, 207 So.2d 368. (La.App. 3rd Cir. 1968); Collins Pipeline Company v. New Orleans East, Inc., 250 So.2d 29 (La.App. 4th Cir. 1971); Louisiana Intrastate Gas Corp. v. Girouard, 336 So.2d 1042 (La.App. 3rd Cir. 1976); Louisiana, Intrastate Gas Corp. v. Brous-sard, 336 So.2d 1049 (La.App. 3rd Cir. 1976). However, a finding to the contrary by the trial judge does not necessarily require reversal, for in order to recover damages for diminution in value to his property under Article 667, plaintiff must prove that the value of his property was in fact diminished due to the existence and operation of the pipeline on the land of his neighbor.

There is sufficient basis in the record to support the trial court’s determination that the highest and best use of plaintiff’s property is for farming, private recreation and cattle grazing. Mr. Lennis X. Lamulle, who is a real estate appraiser from New Orleans, testified that he has made appraisals in Terrebonne Parish for some time. Mr. N. Charles Shaver of Thi-bodaux, who is a realtor and appraiser in the Lafourche and Terrebonne Parish area, testified that he had been involved in the real estate business in that area for the last eight years. Mr. Lamulle testified that his inspection of Highway 311 revealed some residential and industrial uses of the property along Highway 311, but that these uses were practically confined to the extreme ends of the highway (i. e. at the north side of Houma and at the north end of Highway 311). He testified that between those two points, it is almost totally committed to agriculture with the exception of one or two subdivisions and one or two large plantation homes. The highest and best use, according to Mr. Lamulle, was for agricultural and recreational purposes. Additionally, he felt that the development trend would concentrate along Highways 24 and 308 which parallel Highway 311 from Hou-ma for a distance because of the recent conversion by the highway department of those highways into a major four lane, the development of large shopping centers between Houma and Thibodaux, the availability of residential property, the accessibility to schools and churches, and the development of subdivisions between Houma and Thibodaux along that thoroughfare. He further stated that development along Highway 24 obviated the need for development along Highway 311. .

Mr. Shaver also testified that he felt the highest and best use of the subject property was for agricultural purposes. He testified that according to his inspection of Highway 311, residential development in Houma along that highway was within four miles of Houma and that the commercial development seemed to be concentrated mainly between Hollywood Road and St. Charles Street in Houma. Mr. Shaver also stated that all the land in the general vicinity of the subject property was used for sugar cane farming and that because it was located almost directly between Houma and Thi-bodaux, it would be quite some time before pressure for residential development would bear upon it from either city. Furthermore, he was of the opinion that almost all industry located along Highway 311 related to the oil industry in some form or to the construction industry, and the reason they were located closer to Houma rather than at the north end of Highway 311 was to be closer to their service areas.

Under cross examination plaintiff’s expert admitted that of the thirty-two industries that he counted along Highway 311, that only four were located north of Hollywood Road in Houma, which is approximately eight miles from the subject property, and of the seven subdivisions that he counted only three were located north of Hollywood Road.

Notwithstanding the admittedly substantial demand for property for residential, commercial and/or industrial, we find that the record contains substantial evidence that there is no demand upon plaintiff’s property for such use, and that it was not error for the trial court to have found the highest and best use of such property was for agricultural, recreational, and cattle grazing purposes. The record reveals that 95% of the surrounding land is used for the sole purpose of sugar cane farming as was the subject property up until the trial. The so-called demand and development along Highway 311 has simply not occurred as yet, nor will it occur within the reasonably foreseeable future as testified to by defendant’s experts. Furthermore, assuming that we are to follow the same standards for determination of damages as is followed in expropriation cases, it must be noted that “highest and best use” is determined by the most profitable use to which the property may be put in the foreseeable future, excluding remote and speculative value. The courts have followed this test for “highest and best use.” City of New Orleans v. O’Krepki, 162 So.2d 76 (La. App. 4th Cir. 1964), writ refused, 246 La. 345, 164 So.2d 350 (1964).

In Central Louisiana Electric Co., Inc. v. Harang, 131 So.2d 398, 401 (La.App. 1st Cir. 1961), this Court pointed out:

“It is common knowledge that any tract of land wheresoever situated may be physically divided into residential plots or lots and subdivided irrespective of the demand for such property. However, potential subdivision use, to serve as the basis for establishing market value in an expropriation proceeding, must be shown to be reasonably prospective, as distinguished from remotely prospective, so as to remove said potential use or classification from the realm of guesswork, speculation and conjecture. If such potential future use is shown within the reasonably near future the owner is entitled to compensation on the basis of best and highest use for subdivision purposes even though the property affected be not in use for such purpose at the time of taking. However, if the potential (as, indeed, there is a potential in every case no matter how remote) is so indefinite or remote as to be predicated solely upon speculation and conjecture, it may not serve as the criteria of market value.”

As for plaintiff’s assertion that his property was damaged by 30%, even if its highest and best use is found to be for agricultural, recreational and cattle grazing purposes, he cites several cases for the proposition that severance damages are properly awarded to farm land and other rural estates which lands were adjacent to and damaged by the existence and operation of high pressure pipelines. Trunkline Gas Company v. Verzwyvelt, 196 So.2d 58 (La. App. 3rd Cir. 1967); Texas Gas Transmission Corporation v. Pierce, 192 So.2d 561 (La.App. 3rd Cir. 1966); United Gas Pipeline Company v. Singleton, 241 So.2d 93 (La.App. 3rd Cir. 1970); Texas Gas Transmission Corporation v. Hebert, supra; Michigan Wisconsin Pipe Line Company v. Miller, 229 So.2d 182 (La.App. 3rd Cir. 1969, writs refused); Collins Pipeline Company v. New Orleans East, Inc., supra.

In Verzwyvelt, the court allowed severance damages for the disruption of the natural drainage; for the creation of patches and strips which will remain boggy for extended periods after rain for at least a year; for destruction of the fertile topsoil; for increasing the unit cost of producing cotton; for preventing utilization of a strip 141 feet in width by the entire length for the construction of any improvements; and for increasing the occasions necessary for inspections and maintenance crews to disturb the landowner in' the use of his land.

In Pierce, severance damages to farm lands were allowed because of “the greater difficulty a prospective purchaser could anticipate in the cultivation of the rice field over the next few years because of the loss of fertility in the affected strip and its location.”

In Singleton, the court limited its holding to similar severance damages allowed by it in Verzwyvelt and Pierce cases.

In Hebert, the court was dealing with suburban rural acreage.

In Miller, the court was also dealing with rural homesites, and if agriculture, they would suffer loss in agricultural value due to the added problems of drainage and cultivation.

In New Orleans East, Inc., the property was undeveloped and more or less swampy in nature. However, the property abutting the pipeline was variously zoned in places as commercial, residential, industrial and heavy industrial.

The instant case is not an expropriation proceeding nor was any part of plaintiff’s property used in the construction of the pipeline. It is farm land and will not suffer any damages of the type listed in the Verzwyvelt and Pierce cases.

In Louisiana, Intrastate Gas Corp. v. Girouard, supra, cited by plaintiff for the fear factor, the court, while allowing severance damages to land best suited for rural homesites, disallowed any damage to the farm land stating:

“. . . The infrequent necessity of an owner or user’s presence near the pipeline can occasion only a negligible adverse effect on its value. We think such devaluation is too slight to be cognizant in law and must disallow this claim.”

Plaintiff contends the trial court erred in failing to hold that the testimony of Prentice’s expert witness, Mr. Preston Babi-neaux, was reliable. He asserts that when the opinion of an expert regarding market value and severance damages is clearly supported by sufficient facts and experiences it must be given weight and cannot be ignored or minimized unless the record contains justification for the same. But it is equally true that the weight expert testimony is entitled to receive is determined by the professional qualifications and experience of the witness and the circumstance and materials on which the opinion was based. Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976). In his written reasons for judgment, the trial judge thoroughly reviewed plaintiff’s expert appraisal and explained, in detail, his reasons for not accepting the testimony of that expert. Sufficient justification for the rejection of the testimony of that expert appears of record. The trial judge did not commit manifest error by accepting the • testimony of defendant’s expert who was more familiar with the subject property than was plaintiff’s expert.

Plaintiff concedes that it had the burden of proof to prove a diminution in value of the property located adjacent to a high pressure gas pipeline. Plaintiff contends it met this burden by the testimony of its expert, Mr. Preston Babineaux, a real estate appraiser, developer and investment consultant and builder from Lafayette. Mr. Babineaux’s testimony on the point of buyer resistance centered exclusively on his experiences in the sales and purchases of subdivision properties. He offered no evidence that farm lands, selling as farm lands, would suffer a depressed price because of the close proximity of the pipeline to the land. We concur with the trial court’s ruling that plaintiff failed to prove by a preponderance of the evidence any diminution in value to his farm as a result of the presence and operation of a high pressure gas pipeline on defendant’s property.

Plaintiff also contends that the trial court erred in failing to admit into evidence plans of plaintiff’s proposed “Cynthia City” on the subject property adjacent to the pipeline. In this respect the trial court found:

“In 1971 the plaintiff, through T. Baker Smith & Sons, Inc., civil and consulting engineers, employed Diversified Economics Planning and Association, Inc. to prepare a land use plan for the plaintiff. Mr. Jim McDonald, a major stockholder and president of said company, supervised the making of the plan. Mr. Jim McDonald testified (Tr. p. 13) that professionally he was an urban planner. He produced an urban plan.
“However, the plaintiff did not follow up on it by implementing it. It did not cause a civil engineer or land surveyor to survey in and stake and measure out on the ground such a plan or subdivision. It did not thereon establish and dedicate streets, lots, etc. It did not submit such a survey plat and statement of proposed restrictions to the Parish Planning Commission for approval. It did not file such an approved subdivision plan of record. It did not attempt to sell any of such land for residential, commercial and or industrial purposes. It did not do anything in using or developing the land consistent with developing any residential, commercial or industrial qualities.
“It did not do anything consistent with implementing the urban plan.
“It did continue to raise sugar cane upon it and to use some of it for pasture of cattle.”

We find nothing in the record contrary to the trial court’s finding that plaintiff took no steps in the furtherance of such project. Absent such evidence, we cannot say that it was manifest error for the court to refuse to admit mere plans of the proposed future development as a basis for the recovery of damages.

With respect to the matter of fees for plaintiffs expert, R.S. 13:3666 provides:

“B. The Court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) from the testimony adduced upon the trial of the cause, the court shall determine the amount thereof and include same or,
(2) by rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment.”

The fixing of expert witness fees lies within the sound discretion of the trial court and should not be disturbed unless clearly erroneous. Williams v. Harvey, 328 So.2d 901 (La.App. 4th Cir. 1976).

Plaintiff’s sole contention is that in an expropriation proceeding the expert appraiser who testifies is entitled to reasonable compensation for his appearance in court and for preparatory work done by him. We once again point out that this is not an expropriation proceeding and that the trial court was correct in fixing a fee based solely on court appearance. We find no abuse of discretion on the part of the trial judge.

The judgment included fees for the court reporter in the amount of $576.00 for preparation of the transcript; therefore, we find no error as plaintiff contends in that respect.

For the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: BLANCHE, Judge.

text:
    Aliene M. CLARKE, Individually and in her capacity as natural tutrix of the minor child Douglas Randal Clarke v. Robert SHARSHAN et al.
    No, 11701.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Norman Ershler, Baton Rouge, of counsel for plaintiff appellant, Aliene M. Clarke, Indv.
    John Dale Powers, Baton Rouge, of counsel for defendant appellee, Robert Shar-shan, et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Mrs. Aliene M. Clarke, individually and as natural tutrix of her minor son, is appealing a judgment granting a motion for summary judgment and dismissing defendant, Jefferson Insurance Company of New York, from the suit. Said defendant was insurer of Dale Mathew Jewell, defendant-owner of the motorcycle being driven by an alleged second permittee and on which the Clarke minor was a passenger when he allegedly suffered injuries on April 4, 1976.

Plaintiff contends that the trial court erred in finding that the Jefferson Insurance Company policy provided no coverage that would include her claim, and she frames the single appeal issue as being whether or not the provisions of the policy headed “Special Endorsement Motorcycles, Motor Scooters, Motorized Bicycles” excluded her and her minor son from the “Uninsured Motorist” coverage provisions of the contract. Section (1) of the Special Endorsement provides:

“It is hereby understood and agreed that this policy does not cover any liability for injuries to anyone riding on or in or entering into or alighting from the motor-scooter, motorbike or motorcycle described in this policy and this provision supersedes any terms or conditions of the policy to which it is attached * * * (Record, p. 64)

The following provisions of LSA-R.S. 22:1406 are controlling:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
“(l)(a) No automobile liability insurance * * * shall be delivered or issued for delivery in this state * * * unless coverage is provided * * * for
the protection of persons insured thereunder * * * from owners or operators of uninsured * * * motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom * * *

Under the uninsured motorist endorsement of the policy, the motorcycle was an “insured automobile,” because it was the vehicle described in the schedule as an insured automobile. The minor child of plaintiff who was a guest passenger was an “insured” under the policy because he was occupying the insured vehicle. Plaintiff was also an “insured” under this coverage because she was entitled to recover damages sustained by an “insured,” her minor child.

The motorcycle exclusion referred to above, if literally applied, would completely defeat coverage under the uninsured motorist provisions of the policy as it applies to “anyone” riding thereon. However, such an exclusionary provision is contrary to the above statute requiring uninsured motorist protection and is, therefore, void. Since plaintiff and her minor son were insureds under the provisions of the policy, their exclusion from uninsured motorist protection is contrary to public policy.

For the above reasons, the judgment granting the motion for summary judgment is reversed and set aside, and the case is remanded to the trial court for further proceedings in accordance with law. The costs of this appeal are assessed to the defendant-appellee, Jefferson Insurance Company of New York.

REVERSED AND REMANDED.