author: DIXON, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. John DEFRANCES.
    No. 59846.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Sam N. Gregorio, Gregorio & Frazier, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Bullers, Asst. Dist. Atty., 26th Jud. Dist., Bossier and Webster Parishes, for plaintiff-respondent.
   DIXON, Justice.

This case involves a challenge of the constitutionality of R.S. 14:104, keeping a disorderly place, based on the contention that the statute is void-for-vagueness.

Two indictments were filed against John Defrances both charging violation of R.S. 14:104. The indictments stemmed from an investigation which, the State contends, produced evidence of B-drinking and lewd dancing in two lounges located in Bossier City, Louisiana. Defendant filed motions to quash the indictments alleging the failure to properly indict, the failure to state essential facts constituting the offense charged, and the unconstitutional vagueness of R.S. 14:104. The trial judge granted the motion to quash based on the allegation that the indictment failed to conform to C.Cr.P. 464 because it merely stated a conclusion of law without setting forth the essential facts constituting the offense, and ordered the State to so amend the indictment. The other two motions were denied. Application for writ of certiorari was granted by this court. State v. Defrances, 346 So.2d 214 (La.1977).

Defendant contends that R.S. 14:104, insofar as it makes criminal maintaining a place to be used habitually for “any immoral sexual purpose” is unconstitutionally vague.

R.S. 14:104 provides in part:

“Keeping a disorderly place is the intentional maintaining of a place to be used habitually for any illegal purpose or for any immoral sexual purpose.”

R.S. 14:104 was amended to its current form in 1948 after this court’s decision in State v. Truby, 211 La. 178, 29 So.2d 758 (1947), declaring unconstitutional that part of R.S. 14:104 which defined the crime of keeping a disorderly place as the “intentional maintaining of a place to be used habitually for any illegal or immoral purpose.” The court held that the words “immoral purpose” were vague, indefinite and uncertain, recognizing that it left to the courts the determination of its meaning in any given case, which determination could vary from locality to locality.

In response to Truby, the statute was amended by substituting for the words “for any illegal or immoral purpose” the words “for any illegal purpose or for any immoral sexual purpose” (emphasis added). The effect of the addition of this language in more clearly defining the prohibited conduct has not heretofore been determined.

The United States Supreme Court has enunciated values out of which the void-for-vagueness doctrine, based upon the due process clause of the Fourteenth Amendment to the United States Constitution, arose:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute *abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ . than if the boundaries of the forbidden areas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972). (Footnotes omitted).

The same protection is provided an accused under Article 1, § 13 of the Louisiana Constitution, which states that “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” Jurisprudence has recognized that “ . . . this guarantee requires that penal statutes describe the unlawful conduct with sufficient particularity and clarity such that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.” State v. Lindsey, 310 So.2d 89, 90 (La.1975). See also Connick v. Lucky Pierre’s, 331 So.2d 431, 434 (La.1976).

The State contends that the words “any immoral sexual purpose” sufficiently defines the prohibited conduct, and in oral argument before this court asserted that there is a general understanding of the meaning of these words.

We do not agree that the phrase “immoral sexual purpose” has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden, or that “sexual” has sufficiently delimited the word “immoral” so as to pass constitutional muster.

Louisiana, in adopting a mode of statutory construction, has struck a middle ground between strict and liberal constructionism. R.S. 14:3, regarding interpretation, provides:

“The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

Twenty-nine years ago, at the time R.S. 14:104 was amended, what was considered “sexually immoral” perhaps had a generally accepted meaning to the population as a whole. However, with the passage of time, and an increasingly more liberal sexual standard, what may have been considered to fall clearly within the scope of sexually immoral conduct may no longer be interpreted as such by a substantial segment of the population. For example, an embrace between young lovers in public may have been “sexually immoral” and shocking to many almost thirty years ago, but today it would hardly cause a raised eyebrow. Forty years ago ballroom dancing was prohibited as “immoral” at any college function by the trustees of Centenary College, just across the river from defendant’s establishment. Sexual mores change with the times, and achieving a consensus of meaning becomes exceedingly more difficult.

Thus a court today, in applying 14:104, is put in the position of having to determine for itself the standard of guilt in a given situation. This clearly goes beyond giving a statute its “genuine construction” but enters the area of creating crimes that are not specifically provided for by statute and infringing on what is reserved as a legislative function.

When the Louisiana Criminal Code was enacted in 1942, and after the 1948 amendment, R.S. 14:104, keeping a disorderly place, and 14:105, letting a disorderly place, appeared to be intended as a prohibition against the keeping or letting of what were commonly known as “bawdy houses,” or houses of prostitution. If there still are such places, it is clear that they would be covered by the language “immoral sexual purposes.” The danger lies in the potential of this language encompassing certain activity that most would agree is generally not considered to constitute criminal activity. For example, the owners of certain establishments are not informed by 14:104’s language as to whether the following activity is prohibited: (1) owners of “swinging singles” apartment complexes; (2) owners of places where sparsely-clad “go go dancers" perform; (3) apartment building owners who rent to unmarried couples who cohabit; (4) owners of bars and lounges that provide comfortable surroundings to accommodate patrons “making out;” (5) owners of bars and lounges where customers engage in the current dance crazes, such as “the bump” which is suggestive of sexual intercourse. The foregoing activity, which might annoy some and shock others, could hardly have been what the legislature had in mind when it was aiming to control the proliferation of bawdy houses. Nevertheless, some law enforcement personnel could construe this conduct as “sexually immoral” and subject otherwise innocent individuals to criminal prosecution. Leaving the definition function to the courts tends to promote the kind of arbitrary and discriminatory enforcement the due process clause sought to protect against. A person of ordinary intelligence must be better informed than he is at present under R.S. 14:104 of conduct which crosses the line from non-criminal to criminal; it is a legislative function to draw the line distinctly.

Reference to statutes in other jurisdictions is helpful to show that the conduct sought to be prohibited may be expressed in clearer, more narrowly drawn language so as to conform to constitutional standards. (Broad language is not in itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind. See the comprehensive theft (R.S. 14:67) and gambling articles (R.S. 14:90) which make criminal all unauthorized takings of the property of another, and all gambling-as-a-business. “Any immoral sexual purpose,” to be generally understood, must be interpreted to refer to all sexual purposes except private activity between lawfully married couples pertaining to procreation. No one would argue such a legislative intent).

The State cites cases where certain statutes, which had been amended through addition of the word “sexual,” withstood void-for-vagueness attacks to show that R.S. 14:104 is similarly definite. State v. Roth, 226 La. 1, 74 So.2d 392 (1954); State v. Fulmer, 250 La. 29, 193 So.2d 774 (1967); State v. Willis, 253 La. 893, 221 So.2d 39 (1969).

In Roth the constitutionality of part of •the obscenity statute, R.S. 14:106(2), after it was amended by addition of the word “sexually” to delimit “indecent,” was upheld. However, the invalidity of the Roth decision was clear after the United States Supreme Court’s decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which set out constitutional standards for obscenity statutes. See State v. Christine, 239 La. 259, 118 So.2d 403 (1960); State v. Shreveport News Agency, 287 So.2d 464 (1973); State v. Gay Times, 294 So.2d 496 (1974).

Fulmer, supra, and Willis, supra (which affirmed Fulmer) also should not control. At issue there was whether, in R.S. 14:92(7) (contributing to the delinquency of juveniles), the phrase “perform any sexually immoral act” was sufficiently specific, the court having previously held that “perform any immoral act” was too indefinite. Relying wholly upon State v. Roth, supra, (which has not survived the development of obscenity laws), this court held, in Fulmer, that “perform any sexually immoral act” had an accepted meaning, generally understood. (This is not to indicate that R.S. 14:92(7) is unconstitutionally vague today, for it can be read to mean that all sexual acts performed with a child under seventeen are criminal).

Therefore, we hold that the portion of R.S. 14:104 dealing with maintaining of a place to be used habitually for “any immoral sexual purpose” is unconstitutionally vague. That part involving “any illegal purpose” is clear and definite, since the word “illegal” means “contrary to some criminal statute of this state” or “violative of some criminal statute,” and thus leaves nothing for the court to define. State v. Truby, supra, at 760.

Defendant, in an additional assignment of error, alleges that the indictment under which he was charged is defective in that the language used does not track the language of the statute and therefore the State should be required to amend the indictment to conform thereto. Our disposition of the case on the question of constitutionality pretermits the necessity for any comment on this allegation.

For the reasons assigned, the ruling denying the motion to quash is reversed, and the case is remanded to the trial court for further proceedings consistent with the views expressed herein.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents.

MARCUS, J., concurs.

SANDERS, Chief Justice

(dissenting).

I cannot agree that the words “any immoral sexual purpose” in the context of the statute are so vague as to render the statute unconstitutional. In my opinion, the principles announced in State v. Willis, 253 La. 893, 221 So.2d 39 (1969); State v. Fulmer, 250 La. 29, 193 So.2d 774 (1967); State v. Roth, 226 La. 1, 74 So.2d 392 (1954); and State v. Rose, 147 La. 243, 84 So. 643 (1920), require that the court uphold the constitutionality of the statute.

Apart from the decisions of this Court, the authorities generally agree that the words “immoral sexual purpose” have a commonly understood meaning and that they are not constitutionally void for vagueness. See Morrow, The Generality of Immorality in Louisiana, 21 Tul.L.Rev. 545, 549 (1947); Louisiana Legislation of 1948, 9 La.L.Rev. 47; Note, 8 La.L.Rev. 129 (1947).

For the reasons assigned, I respectfully dissent.

      .This court, in State v. Carpenter, 319 So.2d 355 (La.1975), in relying upon a dictionary definition, held that the word “hunting” had a clearly definable meaning and thus the statute in which it was contained was not unconstitutionally vague. Due to the word’s accepted meaning, the accused would be informed of the nature and cause of the accusation against him and would be afforded fair notice of the conduct proscribed by the statute. The same cannot be said about the word “sexual” whose dictionary definition adds little illumination and is still subject to varying interpretations. “Sexual” is defined as follows:
      “1. Pertaining to or associated with sex; as sexual differentiation; specif.; pertaining to sex as concerned in reproductive processes; as, the sexual instinct or impulse.
      2. Pertaining to the sexes; particular to, or relating to, either the male or female or their distinctive organs or functions.
      3. Pertaining to the use or abuse of sex functions, appetites, etc.; as, sexual morality.
      4. Biol. Having sex; — opposed to asexual.” Webster’s New International Dictionary, Second Edition, Unabridged (1953).
      “Morals refers to generally accepted customs or conduct and right living in a society, and to the individual’s practice in relation to these; the morals of our civilization.” The American College Dictionary, Random House.
      It therefore becomes necessary for the courts to decide what acts should be deemed to constitute the offense, a function more properly belonging to the legislature.

      . See, e. g., Cal.Penal Code § 316 (West):
      “Keeping disorderly houses. Every person who keeps any disorderly house, or any house for the purpose of assignation, or prostitution, or any house of public resort, by which the peace, comfort, or decency of the immediate neighborhood is habitually disturbed, or who keeps any inn in a disorderly manner; and every person who lets any apartment or tenement, knowing it is to be used for the purpose of assignation or prostitution, is guilty of a misdemeanor.”
      Ark.Stat.Ann. § 41-3207:
      “Abatement as public nuisance. The operation of a house of ill fame, a bawdy house, a disorderly house or any house for the purpose of assignation or prostitution in this state to which men and women resort for the purpose of prostitution or lewdness, is hereby declared to be a public nuisance, detrimental to public morals and may be abated under the present provisions of law for the suppression of public nuisances.”
      (Texas, in enacting its new penal code in 1973, chose to repeal its very specific and detailed statute on “keeping a • bawdy or disorderly house.” See Texas Former Pen.Code Ann. arts. 510, 511, 513, 514).


source: Caselaw Access Project

author: TATE, Justice. MARCUS, Justice

license: Public Domain

text:
    Catherine BENJAMIN and Fred Benjamin, Plaintiffs-Relators, v. NATIONAL SUPER MARKETS, INC., Defendant-Respondent.
    No. 59872.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Gerald P. Aurillo, Metairie, for plaintiffs-relators.
    William M. Barnett, Guste, Barnett & Shushan, New Orleans, for defendant-respondent.
   TATE, Justice.

The trial court granted plaintiffs the right to appeal in forma pauperis. La.C. Civ.P. Arts. 5181 et seq. After hearing, the trial court denied the defendant's motion to traverse the plaintiffs’ indigency. It held that the evidence proved that the plaintiffs were unable to prosecute their appeal because of lack of financial means, unless permitted to do so in forma pauperis.

The court of appeal granted supervisory writs and reversed this holding. 346 So.2d 1110 (La.App. 4th Cir. 1977). The court of appeal did so solely on the basis that the husband’s gross annual income for the preceding year was $20,898.23 as a longshoreman, despite the family’s substantial monthly debts in excess of net income because of the wife’s inability to work.

We granted certiorari. 347 So.2d 253 (1977). We did so, because we thought that the intermediate court, by reversing the trial court’s exercise of its discretion in the matter, had erroneously relied only upon the apparent gross income of the husband, without taking into consideration the net income and the debts, which indicated an actual present inability of the family to pay the costs of the appeal or to furnish bond therefor.

I.

The statutory test is provided by Article 5181: “An individual who is unable to pay the costs of court, because of his poverty and lack of means, may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance, or as they accrue, or furnishing security therefor.”

The trial court felt that the statutory requirement was met by the following evidence:

(1) The husband’s actual take-home pay was $14,793.19 per year, or about $1,200 per month.

(2) The proven monthly expenses of the family (husband, wife, five children in public schools), together with heavy monthly payments on outstanding past debts, amount to slightly in excess of $1,700 per month. (Due to the wife’s disability, she is no longer able to contribute to the family earnings to pay these debts (in excess of income) incurred prior to and during her disability.)

(3) The amount required to perfect the appeal is in excess of $1,000.

(4) The evidence shows that the plaintiffs do not have the funds to pay this cost of the appeal, nor can they make bond to secure these court costs necessary to permit their appeal.

No more than did the trial court, do we find persuasive the defendant’s suggestion that this factual finding of inability to pay the court costs is not met, because:

(1) The plaintiffs own a home valued at $27,500 upon which they owe $20,000 (and were in default for 3 months’ payments in excess of $200 each at the time of the hearing). The defendant suggests that the petitioners should somehow realize court costs from their $7,500 equity in their home or upon household furniture in the home.

(2) The evidence reflects that petitioners own a 1970 Chevrolet truck and have charge accounts at several stores in the area, although they have no money in their former checking and savings account balances. The defendant apparently suggests that the plaintiffs dispose of this means of family transportation and also charge their future necessities to their accounts, so as to be able to use the husband’s earnings to pay court costs instead of food, clothing, school expenses of the children, and mortgage payments.

(3) The evidence shows that, as a result of their successful suit in the trial court, the plaintiffs collected an amount of $9,567 from the defendant several weeks prior to this suit (of which $5,000 was for the wife’s personal injury, the remainder for court costs, medical expenses, etc.).

However, the evidence also shows that from this award, they received a net amount of $1,775.55, after deductions (except for $40 for photographs taken by the attorney in connection with another matter) of medical expenses occasioned by the accident, court costs, expenses of the litigation, and attorney’s fees for obtaining the judgment (a privileged claim, see La.R.S. 9:5001). The evidence also shows without contradiction that the $1,775 was paid on some past-due bills in order to reduce their balance.

II.

The test provided by the legislature is to allow a litigant to proceed without prepayment of costs or furnishing of bond if he is “unable to pay the costs of court, because of his poverty and lack of means.” Article 5181.

We agree with the district court, who allowed the litigant to proceed upon the above showing, that “it is not the income that you have that determines whether you are indigent, but it is what happens to the money that comes in. Here the plaintiffs have given us the proof by which we should allow a person in forma pauperis to proceed” — namely, that because of their heavy indebtedness (in part resulting from the effects of the present tort), they are in fact unable reasonably to pay the court costs necessary to perfect their appeal or to give bond therefor.

As we stated in Heyse v. Fidelity & Cas. Co. v. New York, 255 La. 127, 229 So.2d 724, 725 (1969): “The purpose of these [in forma pauperis] articles is to enable indigent persons to assert their causes in the courts of this state.” This statutory privilege is to be interpreted liberally in favor of giving indigent persons their day in court. Harrison v. Jones, 187 La. 489, 175 So.2d 37 (1937); Fils v. Iberia, St. M. & E. R. Co., 145 La. 544, 82 So. 697 (1919); Brumfield v. Community Mobile Homes Inc., 315 So.2d 901 (La.App. 1st Cir. 1975); Roy v. Gulf States Utilities Co., 307 So.2d 758 (La.App. 3d Cir. 1975).

In determining a litigant’s qualification or not to proceed as an indigent, the courts have taken a realistic view as to the litigant’s actual ability to advance or secure court costs out of net income available for that purpose, after payment of reasonable living expenses and debts, and in view of unencumbered property other than a modest family residence.

See: Gilmore v. Rachl, 202 La. 652, 12 So.2d 669 (1943); Fils v. Iberia, St. M. & E. R. Co., 145 La. 544, 82 So. 697 (1919); Roy v. Gulf States Utilities Co., 307 So.2d 758 (La.App. 3d Cir. 1975); Houston v. Brown, 292 So.2d 911 (La.App. 2d Cir. 1974); Bodcaw Company v. Enterkin, 273 So.2d 325 (La.App. 3d Cir. 1973); Stump v. City of Shreveport, 255 So.2d 210 (La.App. 2d Cir. 1971); Hollier v. Broussard, 220 So.2d 175 (La.App. 3d Cir. 1969); Crawford v. Government Employees’ Ins. Co., 219 So.2d 241 (La.App. 3d Cir. 1969).

Thus, a litigant is not regarded as necessarily disqualified from the privileges granted by the act if he does not dispose of or encumber a modest family home and the furniture in it (Gilmore, Fils) or a modest automobile essential for family transportation (Roy). Likewise, the decisions note the existence or not of debts which might compel the allocation of net income to other purposes than paying the costs of a lawsuit (Gilmore, Houston, Hollier).

Another factor sometimes noted in the decisions concerns the amount of the anticipated court costs, as balanced against the litigant’s funds available for that purpose. “The general approach . . . is to balance against income the needs of living and of paying other bills and expenses, and then to determine whether the residual income (or savings or surplus property) is adequate to pay the expected cost of litigation or to furnish a bond therefor.” Hollier v. Broussard, 220 So.2d 175, 177 (La.App. 3d Cir. 1969).

In our view, the fallacy of the defendant’s argument is the view advanced by it that, in order to proceed in forma pauperis, the plaintiffs are obliged to divert their income to court costs of this litigation, rather than to food, schooling, or other obligations, and to liquidate their equity in their modest home and furniture. The defendant stated in brief to the court of appeal: “It is submitted that the Article contemplates someone destitute of means except perhaps as may be derived from public assistance or charity.”

The jurisprudence cited above has uniformly rejected the defendant’s view. The purpose ascribed to the legislative privilege is to assure that no litigant be deprived of his day in court because of a lack of financial means to pay court costs.

Thus, an individual’s privilege to litigate his claim in our courts is not regarded as a luxury. Rather, it is regarded as a privilege granted him in the interest of individual justice to him, and in the interest of a judicial system designed to provide justice for all. The grant of the privilege to litigate without prepayment of costs is designed to deny depriving any individual of his day in court merely because of his lack of financial means to pay or secure court costs.

It is to be borne in mind, however, that the grant of the privilege to litigate in forma pauperis is founded upon the view that in effect, the governmental bodies are merely furnishing without prepayment of cost its resources to the financially embarrassed litigant, in order to prevent his losing his day in court merely because of the financial expense to the government of entertaining his claim.

Of course, the litigant remains liable for the costs, despite the granting of the privilege allowing him to proceed without their prepayment or bonding. La.C.Civ.P. arts. 5186-88; Coulon v. Anthony Hamlin, Inc., 233 La. 798, 98 So.2d 193 (1957). If he subsequently becomes able to pay such costs (e. g., in the present husband’s case, upon his receipt of a substantial income tax refund not needed to pay his immediate expenses, see footnote 1), then the costs may be collected from him, assuming they have not been subsequently taxed against the opposing party upon the litigant's prevailing in his litigation.

III.

Essentially, we advert to the circumstance that the trial court exercised its discretion to grant the privilege to the litigants ‘to proceed in forma pauperis. The ruling was the result of a considered factual determination, following evidentiary hearing, that the plaintiffs were in fact unable to pay the costs of the appeal (in excess of one thousand dollars) and would otherwise be deprived of their day in the appellate court.

Occasionally the appellate courts have reversed a denial of the right to proceed in forma pauperis as inconsistent with the purposes of the act. Roy v. Gulf States Utilities Co., 307 So.2d 758 (La.App. 3d Cir. 1975), Crawford v. Government Employees’ Ins. Co., 219 So.2d 241 (La.App. 3d Cir. 1969).

However, the general rule is that, in the absence of clear abuse, the appellate courts do not disturb the trial court’s discretion in granting or denying the privilege to litigate in forma pauperis, based upon that court’s factual determination of the litigant’s ability or inability to pay the court costs or to make bond therefor. Houston v. Brown, 292 So.2d 911 (La.App. 2d Cir. 1974); Bodcaw Co. v. Enterkin, 273 So.2d 325 (La.App. 3d Cir. 1973).

Primarily to the trial court is entrusted the duty, on the one hand to see that the privileges granted by the act are not abused, but on the other to permit a qualified indigent such privileges so as not to deprive him of the opportunity of having his claim adjudicated simply because he is financially unable to meet the cost requirements of asserting his claim in the courts. City Stores Company v. Petersen, 263 La. 577, 268 So.2d 662 (1972); Gilmore v. Rachl, 202 La. 652, 12 So.2d 660 (1943); Harrison v. Jones, 187 La. 489, 175 So. 37 (1937); Roy v. Gulf States Utilities Co., 307 So.2d 758 (La.App. 3d Cir. 1975); Hollier v. Broussard, 220 So.2d 175 (La.App. 3d Cir. 1969).

While the issue might be regarded as close because of the apparently large gross annual income, the evidentiary hearing developed that in fact, due to the nature of the employment (see footnote 1) and the plaintiffs’ heavy indebtedness, a real issue existed as to the plaintiffs’ actual ability to pay the heavy appeal costs or else be denied their appeal.

Under these circumstances, we cannot say that the trial court abused its discretion or erred in its finding that the litigants would be denied their appeal if not permitted to proceed in forma pauperis. To the contrary, we believe that our trial brother correctly applied the principles summarized in Roy v. Gulf States Utilities Co., 307 So.2d 758, 760 (La.App. 3d Cir. 1975):

“The legislative intent, we believe, was for that privilege [to litigate in forma pau-peris] to be restricted to those who are clearly entitled to it so that the statute will not be abused, but that a liberal construction should be applied in close or questionable cases to make sure that a litigant who is entitled to such a privilege is not deprived of it.”

Decree

We therefore reverse the judgment of the court of appeal denying the plaintiffs the right to proceed in forma pauperis, and we reinstate the order of the district court granting them such privilege. All costs of the proceedings involving this issue are to be taxed against the defendants. The case is remanded to the district court for further proceedings in accordance with law and with the appeal there perfected.

COURT OF APPEAL REVERSED; TRIAL COURT RULING REINSTATED; CASE REMANDED.

SANDERS, C. J., dissents, being of the opinion that the judgment of the court of appeal is correct.

SUMMERS, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

While plaintiffs might be improvident in the handling of their financial affairs, they are not indigents as contemplated under the law. La.Code Civ.P. art. 5181, et seq. I consider that the court of appeal correctly overruled the judgment of the district court. 346 So.2d 1110 (La.App. 4th Cir. 1977). Accordingly, I respectfully dissent from the majority opinion.

      . The husband works as a longshoreman. Although the hourly pay for the hours worked is high (and consequently the withholding tax is also high), the hours of work vary greatly week to week.

      . The husband’s appeal seeks recovery of the community’s loss of the wife’s earnings and future earnings. The wife’s appeal seeks an increase in the general damages awarded her.

      . Under our recent ruling in McCoy v. Winn-Dixie Louisiana, Inc., 345 So.2d 1175 (La.1977), the wife is clearly unable to pay such costs, having no income of her own.


author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Leo J. MULLER, Sr.
    No. 59929.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      John W. Reed, Martzell & Montero, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Fred P. Harper, Jr., Asst. Dist. Attys., for plaintiff-relator.
   CALOGERO, Justice.

Defendant Leo J. Muller, Sr. while on the premises of Schwegmann Brothers Super Market, 5300 Gentilly Road in the City of New Orleans, is alleged to have indecently and publicly exposed his person with the intent of arousing sexual desire, the crime of obscenity proscribed by R.S. 14:106(A)(1). The charge is a misdemeanor punishable by a fine of not less than $100.00 nor more than $2,000.00, or by imprisonment in the parish prison for not more than one year, or both. The issue we now review is whether defendant Muller was adequately informed of his right to trial by jury on this charge.

Defendant was charged by information in the criminal district court for the Parish of Orleans. His case was allotted to the magistrate section and assigned to Magistrate Robert Collins. Defendant did not personally appear at his arraignment, but his retained counsel did appear, entered a not guilty plea, and advised the court that defendant was aware of his right to a jury trial but did not desire to have one.

Several weeks later defendant was tried by the magistrate in a bench trial and convicted. His motion for new trial and motion in arrest of judgment were denied, and he was sentenced to pay a fine of $250.00 and costs plus sixty days in parish prison. The prison term was suspended and defendant was placed on one year probation with the special condition that he obtain psychiatric evaluation at his own expense.

Defendant appealed to the appellate division of criminal district court, relying on five assignments of error, including the trial court’s refusal to grant his motion in arrest of judgment premised on his not having knowingly and intelligently waived his right to trial by jury. The appellate division remanded the case to the trial court for an evidentiary hearing on the question of whether or not defendant was personally informed of his right to a trial by jury and whether he knowingly and intelligently waived that right.

At the hearing on remand, defendant’s trial attorney testified that he had spoken to his client about a jury trial prior to arraignment. He testified as follows:

“Q. What did you advise your client at that time?
A. Concerning?
Q. Concerning the arraignment, prior to the arraignment date?
A. All right. It was my impression that it wasn’t necessary for him to be here for the arraignment. Perhaps I was in error, I don’t know. In any rate, in a very brief conversation, I said, ‘Mr. Muller, you have a right to a jury in this, but in my opinion I don’t think we want one.’ And it was just that brief. And he said, ‘Okay.’ Q. His response was what?
A. Well, he left it in my discretion.”

The trial judge relied on this testimony, as well as the transcript of defendant’s arraignment in which it was shown that counsel asserted that defendant did not want a jury trial, to hold that defendant had knowingly and intelligently waived his right to jury trial.

Again the issue was appealed to the appellate division. That court reversed the trial judge’s holding. The appellate division, which has jurisdiction to review questions of law and findings of fact, see R.S. 13:1337, reviewed the record, especially the hearing testimony of the trial attorney quoted above, and found that defendant Muller had not knowingly and intelligently waived his right to trial by jury. In its written reasons the court stated that: “the record is silent as to defendant’s knowledge and intent in regard to the waiver;” “the record is bare as to any indication of an intelligent and voluntary waiver by the defendant;” the counsel’s testimony failed “to satisfy the statutory requirement of a knowing and intelligent waiver of trial by jury;” and there was no manifestation of an effective waiver of right to jury trial. Accordingly, the appellate division found merit in the pertinent assignment of error, made no determination as to defendant’s remaining assignments, reversed defendant’s conviction and remanded the case for a new trial.

After unsuccessfully seeking a rehearing, the state applied for writ of review to this Court, arguing that under our jurisprudence the court below had erred in its holding that defendant Muller had not properly waived his right to a jury trial. We granted review. 346 So.2d 715 (La.1977).

The issue now before us is whether the appellate division erred when it found that defendant herein did not knowingly and intelligently waive his constitutional right to a trial by jury.

The right to a jury trial protected by both our state and federal constitutions, holds a place of major importance in the panoply of rights afforded a person accused of a crime. U.S.Const. sixth amend.; La. Const. art. I, §§ 16, 17; Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Before a defendant can enter a valid guilty plea, an action that waives his right to trial by jury as well as other rights, he must himself knowingly and intelligently waive his rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We have held that when a defendant elects a judge trial, the jury waiver attendant thereon must likewise be knowingly and intelligently made. State v. McCarroll, 337 So.2d 475 (La.1976). We stated there that “we must indulge every reasonable, presumption against waiver of this, fundamental right.” State v. McCarroll, supra at 480.

The state acknowledges this standard, but argues that our decisions in State v. Sharp, 338 So.2d 654 (La.1976), State v. Ardoin, 340 So.2d 1362 (La.1976) and State v. Sewell, 342 So.2d 156 (La.1977) support the view that the court below erred.

In State v. Sharp, supra, defendant personally appeared at his arraignment, pled not guilty, and was subsequently convicted by a jury. He argued on appeal that because he was not specifically informed by the judge at arraignment that he could waive his right to jury trial and elect instead a judge trial, as set out in Article 780 of the Code of Criminal Procedure, his conviction should be reversed. We refused to reverse defendant’s conviction on this basis. Because we were satisfied that defendant actually had been informed by counsel of the fact that he could have waived his right to jury trial, we found that there was no reversible error in that instance simply because the trial judge failed to comply with the statutory directive of Article 780. There we stated:

“We do not sanction and will not hold to a hard and fast rule to the effect that failure of the court to verbalize the option [to waive jury trial] at arraignment of defendant necessarily constitutes reversible error. We are satisfied in this case that defendant was aware of his option through advise of counsel and opted to be tried by jury and not waive that right.” 338 So.2d at 660.

Thus, we held in Sharp that when a defendant is not informed by the judge at arraignment as required by Article 780 of his option to waive his right to jury trial, we would not reverse the conviction absent a showing of prejudice.

In State v. Ardoin, supra and State v. Sewell, supra, we again faced situations in which defendants proceeded to trial before a jury. The issue on appeal in both cases was simply whether their right to waive the jury had been violated by the courts’ failure to comply with the Article 780 requirement that a defendant be advised of his right to waive a jury trial. In both of these cases we reaffirmed our holding in Sharp, found no prejudice in the trial judge’s failure to comply with the statutory directive, and affirmed defendants’ convictions.

These holdings, therefore, do not support the state’s position in the case now before us because defendants in those three cases, unlike defendant here, were actually tried by jury, and it was their lesser right to waive jury trial that was at issue, not their constitutional right to have a jury trial. We were concerned in Sewell with similar differences when we distinguished between the primary constitutional right to waive a jury trial and the secondary statutory right to be informed of that right. We therefore find our decisions in Sharp, Ardoin, and Sewell distinguishable from the issue we now face.

In the case before us, the appellate division found that on the record before it defendant Muller did not knowingly and intelligently waive his right to a trial by jury. The court considered the fact that defendant did not personally appear before the judge, the brief nature of the conversation between counsel and client, and the tactical posture in which the communication was couched, and held that these circumstances did not reflect a knowing and intelligent waiver. The Court did not hold that a valid waiver can be made only by a defendant’s personal appearance before a judge, but stated:

“Although a court may not always specifically advise a defendant of his right to trial by jury, there must always exist a manifestation of an effective waiver. The record in the present case fails to establish an effective waiver of jury trial. Therefore, the defendant was denied his right to trial by jury based on an ineffective waiver of that right. When such a fundamental right is involved, and there exists no proof of a voluntary waiver, the court must presume against a waiver.”

We affirm. The right of jury trial in criminal cases is fundamental to our system of justice. Duncan v. Louisiana, supra. Conversely, there is no federal constitutional right not to be tried by jury, except in the very unusual case where a fair jury trial is impossible or unlikely. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). When a defendant waives his fundamental right to jury trial, that waiver must be knowingly and intelligently made. State v. McCarroll, supra.

Defendant urges us to adopt a rule whereby no jury waiver can be effective, even in a case where defendant can plead guilty through his attorney, unless the record reflects that the accused was personally informed by the judge of his right to jury trial. We refuse to adopt such an absolute rule in this type of case where the law specifically allows defendant to plead guilty through his attorney. See State v. Sharp, supra; C.Cr.P. art. 553.

Nevertheless, there can be no doubt that when an accused purports to waive a fundamental constitutional right, no waiver can be effective unless it is done knowingly and intelligently by an accused who understands the consequences of his action. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937). We are impressed with the appellate division’s statement of the law in this area, and we are equally impressed with the fact that that tribunal with its fact-finding powers has apparently found as a fact that defendant Muller did not knowingly and intelligently waive his right to trial by jury. Under these circumstances, we affirm the ruling of the court below and remand the case for new trial.

Because of our disposition of the case, we do not face the other very serious issues raised herein, for example, whether defendant’s action in exposing himself in a supermarket constitutes a violation of R.S. 14:106(A)(1) which forbids exposure “in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom . . . .”

For the reasons above, we affirm the action of the appellate division of the criminal district court and remand the case to the magistrate for further proceedings not inconsistent with the views expressed herein.

SANDERS, C. J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I find no abuse of discretion in the trial judge’s finding that defendant had knowingly and intelligently waived his right to trial by jury. Accordingly, I respectfully dissent.

      . Louisiana Revised Statute 14:106(A)(1) makes criminal the intentional “[e]xposure of the genitals, pubic hair, anus, vulva or female breast nipples in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom with the intent of arousing sexual desire.”

      . The criminal district court is comprised of ten sections separately presided over by ten judges, as well as a magistrate section composed of one magistrate and three commissioners. La.R.S. 13:1335, 1346, 1347. Under the authority of R.S. 13:1346(D) the ten judges have by court order approved the bench trial of misdemeanor cases in the magistrate section, but no jury trials can be conducted in that section. If a defendant whose case has been allotted to magistrate section has a right to trial by jury and does not waive that right, his case will be re-allotted to one of the ten sections of criminal district court, pursuant to court rule.

      . In any misdemeanor case, the accused may plead not guilty through counsel and need not personally appear. C.Cr.P. art. 553.

      . Because defendant’s fine upon conviction for this offense could have been in excess of five hundred dollars and his term of imprisonment could have been in excess of six months, the accused was entitled to a trial by jury. La. Const. art. I, § 17; C.Cr.P. art. 779; Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); State v. Seals, 255 La. 1005, 233 So.2d 914 (1970).

      . Article 780 of the Code of Criminal Procedure provides: “A defendant charged with any offense except a capital offense may knowingly and intelligently waive a trial by jury and elect to be tried by the court. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waiver and election.”


author: DENNIS, J.,

text:
    STATE of Louisiana ex rel. McArthur GALLOW v. Ross MAGGIO, Warden.
    No. 60515.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: McArthur Gallow applying for writ of habeas corpus.

Writ denied.

DENNIS, J.,

dissents for the reasons voted on relator’s appeal, State v. Gallow, 338 So.2d 920 (La.1976).


text:
    STATE of Louisiana v. Freddie PATE.
    No. 60427.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Freddie Pate applying for writ of certiorari.

Writ denied.


text:
    Dale CHATTELIER v. OCHSNER FOUNDATION et al.
    No. 60564.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Dale Chattelier applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Lester SIMS v. Donovan W. PARKER, Judge.
    No. 60593.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Lester Sims applying for writ of mandamus.

Writ denied.


text:
    William G. HELLER, III v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 60562.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: New Orleans Public Service, Inc. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Mack H. ROSS.
    No. 60541.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Mack H. Ross applying for Supervisory writ of certiorari.

Writ denied.


text:
    STATE of Louisiana v. Milton T. FRAZIER and Alberta Frazier.
    No. 60335.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Milton T. Frazier applying for writs of certiorari, mandamus and prohibition.

Writs denied.


text:
    STATE of Louisiana ex rel. Frederick BLAND v. Ross MAGGIO, Warden, etc.
    No. 60364.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Frederick Bland applying for writs of certiorari and habeas corpus?

Writs denied.


text:
    STATE of Louisiana ex rel. Eric JOHNSON v. Charles R. WARD, Judge.
    No. 60438.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Eric Johnson applying for writ of mandamus.

Writ denied.


text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. Leon A. PICOU, Jr., District Attorney.
    No. 60365.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Quenton N. Brown applying for Remedial Writs.

Writs denied.


text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. Ross MAGGIO, Jr., Warden, etc.
    No. 60398.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Harold J. Vincent applying for writs of mandamus, certiorari, prohibition and habeas corpus.

Writs denied.


text:
    STATE of Louisiana ex rel. Lonnie WOODS v. Ross MAGGIO, Warden, etc.
    No. 60439.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Lonnie Woods applying for remedial writ of certiorari.

Writ denied.


text:
    STATE of Louisiana v. Walter WREN.
    No. 60450.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Charles B. W. Palmer applying for writs of certiorari, prohibition and/or mandamus.

Writs denied.

2


text:
    Denise VERON et al. v. Herbert BEAN et al.
    No. 60547.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Allen J. Veron, et al applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph Milton CORMIER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60496.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Joseph Milton Cormier applying for writ of habeas corpus.

Writ denied.


text:
    CITY OF BATON ROUGE v. Claude CROSS.
    No. 60392.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Claude Cross applying for writ of certiorari/review and stay order.

Writ denied.

i


text:
    STATE of Louisiana v. Randall WEBB.
    No. 60644.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: State of Louisiana applying for supervisory writ.

Writ denied.


text:
    STATE of Louisiana ex rel. John Adam WHITSELL v. Ross MAGGIO, Warden, etc.
    No. 60399.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: John Adam Whitsell applying for remedial writs.

Writs denied.


text:
    CITY OF LAFAYETTE v. Lee A. LeBLANC.
    No. 60390.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Lee A. LeBlanc applying for writs of certiorari, prohibition, mandamus and stay order.

Writs denied.


text:
    STATE of Louisiana v. Lloyd SANCHEZ.
    No. 60495.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Lloyd Sanchez applying for supervisory writs.

Writs denied.


text:
    STATE of Louisiana v. Evans BROWN.
    No. 60189.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Evans Brown applying for writs of certiorari and/or review, mandamus and prohibition.

Writs denied.


text:
    Luther M. ZUBER et al. v. LAFOURCHE PARISH SCHOOL BOARD et al.
    No. 60433.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Luther and Gail Zuber applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of Lafourche. 325 So.2d 764.

Writ denied.


text:
    James E. PICKENS et al. v. BEAUREGARD PARISH POLICE JURY et al.
    No. 60322.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: James E. Pickens et al applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Beauregard. 346 So.2d 1380.

Writ denied.


text:
    Donald E. JACKSON v. Mark J. DAVIS et al.
    No. 60256.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Donald E. Jackson applying for certiorari or writ of review to the Court of Appeal, First Circuit Parish of East Baton Rouge. 346 So.2d 757.

Writ denied.


text:
    Joe RHEAMS et al. v. Roosevelt McCRAY et al.
    No. 60264.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Roosevelt McCray, et al applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of Tangipahoa. 346 So.2d 834.

Writ denied.


text:
    William H. ELLIOTT v. DEPT. OF PUBLIC SAFETY, etc.
    No. 60268.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: William H. Elliott applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 839.

Writ denied.


text:
    John H. HODNETT v. Lola Loraine HODNETT.
    No. 60355.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: John H. Hodnett applying for cer-tiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 347 So.2d 17.

Writ denied.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    James WARD v. WEST CARROLL PARISH POLICE JURY, et al.
    No. 60323.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: James Ward et al applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of West Carroll. 347 So.2d 68.

Writ denied.


author: DIXON, J.,

text:
    Edith FOGLEMAN, Individually, etc. v. PIGGLY WIGGLY OPERATORS WAREHOUSE, INC., et al.
    No. 60332.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Edith Fogleman applying for cer-tiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So.2d 75.

Writ denied.

DIXON, J.,

dissents and would grant the writ.


text:
    AMERICAN BANK & TRUST CO., et al. v. Robert E. BYRON et al.
    No. 60343.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Gamm, Greenberg & Kaplan applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Caddo. 347 So.2d 850.

Writ denied.


text:
    Myrtis R. Gilley BRADFORD, natural tutrix of Donald R. Gilley v. J. RAY McDERMOTT & CO. et al.
    No. 60453.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Myrtis R. Gilley applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of St. Mary. 347 So.2d 1218.

Writ denied.


text:
    LAYNE-LOUISIANA, DIVISION OF The SINGER CO. v. GREEN ACRES SEWERAGE & WATER CORP.
    No. 60444.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Green Acres Sewerage & Water Corp. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of Tangipahoa. 347 So.2d 1222.

Writ denied.


text:
    FIDELITY & CASUALTY OF NEW YORK v. CONTINENTAL CASUALTY CO., et al.
    No. 60421.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Fidelity & Casualty Co. of New York applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 347 So.2d 1224.

Writ denied.


text:
    Martha G. AGUILLARD v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 60563.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: New Orleans Public Service, Inc. applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 348 So.2d 97.

Writ denied.


text:
    STATE of Louisiana Through DEPT. OF HIGHWAYS v. NATCHITOCHES COUNTRY CLUB.
    No. 60528.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Natchitoches Country Club applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Natchitoches. 348 So.2d 141.

Writ denied.


text:
    Lela Mae Young MADDOX v. SOUTHERN CASUALTY INSURANCE CO. et al.
    No. 60535.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Southern Casualty Insurance Co., et al applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of LaSalle. 348 So.2d 687.

Writ denied.


text:
    William S. MADDOX v. SOUTHERN CASUALTY INSURANCE CO. et al.
    No. 60534.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: Southern Casualty Insurance Co. applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of LaSalle. 348 So.2d 685.

Writ denied.


text:
    John Wimberlin KERR v. Cynthia Kendrick KERR.
    No. 60677.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: John Wimberlin Kerr applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of Livingston. 349 So.2d 913.

Writ denied.


text:
    William S. MADDOX v. SOUTHERN CASUALTY INSURANCE CO. et al.
    No. 60569.
    Supreme Court of Louisiana.
    Sept. 27, 1977.
   In re: William S. Maddox applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of LaSalle. 348 So.2d 685.

Writ denied.


text:
    STATE of Louisiana ex rel., Floyd P. JACOBS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60755.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: applying for writ of habeas corpus.

Writ denied.


text:
    STATE v. Sidney PAMPO, d/b/a Sidney’s News Stand.
    No. 60588.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   n. In re: State applying for writ of certiora-

Writ denied.


text:
    STATE ex rel. Hank JOHNSON v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 60613.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Hank Johnson applying for writ of certiorari.

Writ denied.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    Henry SADLER v. FLEET TIRE SERVICE & TRAVELERS INS. CO.
    No. 60548.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Henry Sadler applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Orleans Parish.

Writ denied.

CALOGERO, J., dissents.


text:
    Phyllis Ann Hollibaugh BENNETT v. Elmer F. BENNETT.
    No. 60691.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Elmer F.' Bennett applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, St. Tammany Parish.

Writ denied.


text:
    STATE ex rel. David BROWN, Jr. v. Hon. Edwin LOMBARD, Clerk of Court, Orleans Parish, Criminal District Court.
    No. 60448.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: David Brown, Jr. applying for writ of mandamus.

Relator is not entitled to a free transcript under the law.

Writ denied.

DIXON, J.,

concurs in the denial. If defendant has been denied an appeal, he may apply for an out-of-time appeal, and then, if needed, apply for a transcript.


text:
    STATE ex rel. Josie M. LOWE v. Victor D. WALKER.
    No. 60758.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Josie M. Lawe applying for habeas corpus and remedial writs, Criminal District Court, Orleans Parish, Section A.

Writ denied.


text:
    CITY OF LAFAYETTE v. J. C. MAGNON.
    No. 60517.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: J. C. Magnon applying for writs of certiorari, prohibition, mandamus and stay order, City Court of Lafayette, Lafayette Parish.

Writs denied.


text:
    STATE v. Jeffrey ROGERS and David Henry.
    No. 60473.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Jeffrey Rogers and David Henry applying for writs of certiorari, prohibition, mandamus and for a Stay Order: Denied as to defendants’ contention that elements of crime of aggravated assault not proved; granted as to illegality, under C.Cr.P. Art. 884, of sentences imposed on defendants; sentences set aside and case remanded to district court for resentencing.

Writs denied.


text:
    STATE ex rel. Thomas C. MITCHELL v. WARDEN, LOUISIANA STATE PENITENTIARY and 32nd Judicial District Court, Terrebonne Parish, Houma, Louisiana.
    No. 60624.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Thomas C. Mitchell applying for writs of certiorari and habeas corpus.

The change of evidentiary rule, subsequent to the affirmance of the conviction does not entitle this applicant to post conviction relief. See Larue v. Cook, 336 So.2d 871 (La.1976).

Writs denied.


text:
    SCOTT TRUCK AND TRACTOR CO. OF ALEXANDRIA, INC. v. Louis J. DAIGRE, d/b/a Rigolette Ranch, et al.
    No. 60347.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Louis J. Daigre applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Rapides, Parish. 346 So.2d 1297.

Writ denied.


text:
    Melvin NIETTE et al. v. NATCHITOCHES PARISH POLICE JURY et al.
    No. 60570.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Natchitoches Parish Police Jury, et al applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Natchitoches. 348 So.2d 162.

Writ denied.


text:
    GEORGE ENGINE COMPANY, INC. v. SOUTHERN SHIPBUILDING CORP.
    No. 60683.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Southern Shipbuilding Corp. applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of St. Tammany. 349 So.2d 893.

Writ denied.


text:
    Mose L. LINDSAY et al. v. CUMIS INSURANCE SOCIETY, INC., et al.
    No. 60425.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Mose L. Lindsay et ux applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 347 So.2d 1285.

Writ denied.


text:
    Charlene SNYDER v. AMERICAN THRIFT AND FINANCE PLAN, INC.
    No. 60772.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Charlene Snyder applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Orleans Parish. 349 So.2d 393.

Writ denied.


text:
    Don M. ZEMO v. R. A. LOUVIERE, Sr., et al.
    No. 60747.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Don M. Zemo applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Jefferson Parish. 349 So.2d 420.

The result is correct.

Writ denied.


text:
    Frances Joann Hill HIGGINS and Phillip Higgins v. Matthew G. JOHNSON et al.
    No. 60716.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Frances Joann Hill Higgins and Phillip Higgins applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, East Baton Rouge Parish. 349 So.2d 918.

Writ denied.


text:
    Frances Joann Hill HIGGINS and Phillip Higgins v. Matthew G. JOHNSON et al.
    No. 60698.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Matthew G. Johnson, Chart House, Inc. and Liberty Mutual Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, East Baton Rouge Parish. 349 So.2d 918.

Writ denied.


text:
    Cecil E. TOMS v. LOUISIANA HEALTH & HUMAN RESOURCES.
    No. 60721.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Cecil E. Toms applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit’s review of Civil Service Commission. 349 So.2d 941.

Writ denied.


text:
    William Henry RHODES v. Josephine Robinson RHODES.
    No. 60730.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: William Henry Rhodes applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Caddo Parish. 348 So.2d 997.

Writ denied.


text:
    Clarence J. ALOMBRO, Jr. v. CAMPBELL “66” EXPRESS, INC., et al.
    No. 60672.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Clarence J. Alombro, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Orleans Parish: 344 So.2d 1066.

Insufficient showing of error or injury to justify this court’s exercise of its supervisory jurisdiction. Decision on appeal can allocate ultimate responsibility for court costs. The plaintiff is afforded 20 days from date of this court’s action to pay estimated costs, unless such time is further extended by the trial court.

Writ denied.


text:
    Beatrice Strain CALAMIA v. James N. COYNE, Clarence A. Knight and Travelers Indemnity Co. of America.
    No. 60604.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Beatrice Strain Calamia applying for certiorari or writ of review, to the Court of Appeal, First Circuit, St. Tammany Parish. 349 So.2d 956.

Writ denied.


text:
    Gloria Morgan, wife of/and Willie MORGAN v. Dr. Irving SHEEN.
    No. 60567.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Gloria Morgan, wife of/and Willie Morgan applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Orleans Parish. 348 So.2d 101.

Writ denied.


text:
    Anna K. TRAHAN, Individually, etc. v. LIBERTY MUTUAL INS. CO. et al.
    No. 60486.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Anna K. Trahan, et al applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Acadia Parish. 348 So.2d 205.

Writ denied.


text:
    James V. KEMP v. STATE FARM MUTUAL AUTOMOBILE INS. CO. et al.
    No. 60638.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: James V. Kemp applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, East Baton Rouge Parish. 349 So.2d 912.

On the facts found by the Court of Appeal there is no error of law.

Writ denied.


text:
    James D. WILLIE v. OTASCO and Insurance from CNA.
    No. 60443.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Otasco and Insurance FROM CNA applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of St. Tammany.

Writ denied.


text:
    Donald Edward TEAL v. ALLSTATE INSURANCE CO., Joyce Bucher and Alexander Bucher.
    No. 60556.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Allstate Insurance Co., Joyce Bucher and Alexander Bucher applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Orleans Parish. 348 So.2d 83.

On the facts found by the Court of Appeal there is no error of law in the judgment.

Writ denied.


text:
    Richard Wayne STEVENS v. REX CHAINBELT, INC.
    No. 60684.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Richard Wayne Stevens applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Livingston Parish. 349 So.2d 948.

Writ denied.


text:
    STATE v. Gregory HOLMES.
    No. 60692.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: State of Louisiana through the District Attorney, Harry Conniek applying for writ of certiorari.

Writ denied.


text:
    Gordon GOUDEAU v. DEPT. OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
    No. 60717.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Gordon Goudeau applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit’s review of Civil Service Commission. 349 So.2d 887.

Writ denied.


text:
    Raymond BUSE v. CITY OF NEW ORLEANS.
    No. 60741.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: City of New Orleans applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Orleans Parish. 349 So.2d 397.

Writ denied.


text:
    Margie Shemin FRAZIER et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al.
    No. 60406.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Republic Underwriters Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, E. Baton Rouge Parish. 347 So.2d 1275.

The judgment below is not final.

Writ denied.


text:
    Frank A. DODGE v. Jules PIERRE et al.
    No. 60543.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Frank A. Dodge applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Lafayette Parish. 348 So.2d 167.

Writ denied.


text:
    STATE of Louisiana, Through the DEPT. OF HIGHWAYS v. Georgina Duet TERREBONNE et al.
    No. 60693.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: State of Louisiana, through the Dept, of Highways applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Lafourche Parish: On the facts stated by the Court of Appeal the result is correct. 349 So.2d 936.

Writ denied.


text:
    Louis BLACHER v. MATLACK, INC.
    No. 60701.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Louis Blacher applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, East Baton Rouge Parish. 349 So.2d 916.

Writ denied.


text:
    TCHOUPITOULAS, INC. v. Jeanne S. McCULLOUGH et al.
    No. 60764.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Jeanne S. McCullough applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Jefferson Parish. 349 So.2d 346.

Writ denied.


text:
    Ernest GOFF, et ux. v. Anthony C. OCCHIPINTI et al.
    No. 60724.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Mr. and Mrs. Ernest Goff applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, E. Baton Rouge Parish. 349 So.2d 1325.

Writ denied.


text:
    James L. HENDERSON v. The MINNESOTA MUTUAL LIFE INS. CO.
    No. 60339.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: The Minnesota Mutual Life Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Jackson Parish. 347 So.2d 53.

Writ denied.

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


text:
    Lucille BELLARD v. Virginia O’NORA et al.
    No. 60532.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Lucille Bellard applying for certio-rari, or writ of review to the Court of Appeal, Third Circuit, Parish of St. Landry. 348 So.2d 228.

Writ denied.

DIXON, J.,

dissents and would grant the writ, believing the parking of the truck was a cause in fact.


text:
    Phyllis Ann Hollibaugh BENNETT, etc. v. Elmer F. BENNETT.
    No. 60682.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Phyllis Ann Hollibaugh Bennett applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, St. Tammany Parish. 349 So.2d 909.

Writ denied.

TATE and CALOGERO, JJ., dissent.


author: SUMMERS, J.,

text:
    Nathan CARMADELLE v. Mrs. Amelia Werner, wife of Sam URRATE, et al.
    No. 60665.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Nathan L. Carmadelle and West-lake Development Co., intervenor applying for writs of certiorari or review.

Writ denied. Irreparable injury is not evidence from the application. Expedited hearing of the appeal pending in the Court of Appeal would afford applicants adequate remedy if appeal is meritorious.

SUMMERS, J.,

is of the opinion the application was not timely filed and should not be considered. See Rule X, § 5(b), Rules of the Supreme Court.


text:
    Joel I. FORREST v. Bill LYNCH and Times Picayune Publishing Co.
    No. 60431.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Times Picayune Publishing Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge. 347 So.2d 1255.

Denied. No error of law.

DENNIS, J., would grant the writ.

MARCUS, J., recused.


author: SANDERS, C. J., and SUMMERS, J.,

text:
    STATE of Louisiana ex rel. Nelson AVERY v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 60555.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Nelson Avery applying for writ of certiorari.

Writ denied. The issue of the denial of good time credit may be reviewed on appeal.

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

are of the opinion that the application should not be considered, since the appeal is now pending. La.Code Crim.Proc. art. 363.


text:
    Oscar POYNOT, Individually and as the duly appointed provisional curator of Edna LaCroix, widow of Walter F. Poynot v. Gerald G. PFISTER and Ernest J. Hessler, Register of Conveyances for the Parish of Orleans, State of Louisiana.
    No. 60504.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: William M. Duett applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 348 So.2d 98.

Writ denied.

SUMMERS, J.,

is of the opinion the writ should be granted, being of the view that recordation is essential to the validity of a notarial adoption.

DENNIS, J., dissents.


text:
    Wilson SMITH v. CAMERON CREWS, INC. and Insurance Co. of North America.
    No. 60521.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Cameron Crews, Inc. and Insurance Co. of North America applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Cameron. 348 So.2d 179.

Writ denied. There is no error of law in the judgment.

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

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

CALOGERO, J., would grant the writ.


text:
    Franklin J. and Theo Elaine Benedict TRAINOR v. Bennett H. YOUNG and Hartford Accident and Indemnity Co.
    No. 60727.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Bennett H. Young and Hartford Accident and Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 348 So.2d 1004.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., are of the opinion that a writ should be granted.


text:
    PEOPLE POWER, Treme Community Improvement Association, St. Bernard Community Center, St. Mary’s Community Center v. SEWERAGE AND WATER BD. OF NEW ORLEANS.
    No. 60801.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: People Power, et al applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 407.

Denied.

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


text:
    Eddie MATTHEWS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 60799.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Eddie Matthews, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 408.

Writ denied.

CALOGERO, TATE and DENNIS, JJ., are of the opinion that writ should be granted.


text:
    Anne Walker CHAMBERS v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans.
    No. 60784.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Wayne Parker, etc. applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 424.

Writ denied.

SUMMERS, J., dissents from the denial.


text:
    STATE of Louisiana v. Richard PARKER.
    No. 60921.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Richard Parker applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Granted. The conviction complained of is reversed and the case is remanded to the trial court.

SUMMERS, J.,

does not agree that this conviction should be reversed in this ex parte in chambers manner.


text:
    STATE of Louisiana v. Robert Lee JONES and Arthur Jenkins.
    No. 60487.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: State of Louisiana applying for remedial writs.

Writ denied.

SANDERS, C. J., is of the opinion that a writ should be granted.

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

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


text:
    Henry LONDON, Jr. v. Orrell H. RYAN, Jr., et al.
    No. 60695.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: City of Baton Rouge, Louisiana, et al., applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 349 So.2d 1334.

Denied.

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


text:
    Glenn SWETMAN et al. v. Joseph GERACE, Administrator of the Dept. of Employment Security, et al.
    No. 60715.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Glenn Swetman, et al applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche. 349 So.2d 977.

Writ denied.


text:
    Yalmond J. PORCHE v. ROBINSON BROTHERS, INC., et al.
    No. 60712.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Ford Motor Co. applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 349 So.2d 975.

Writ denied.

SUMMERS and MARCUS, JJ., are of the opinion the writ should be granted.


text:
    Mr. and Mrs. Herbert P. RIVERE and National American Insurance Co. v. PHILCO CORPORATION and/or its successor, Philco-Ford Corp.
    No. 60713.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Mr. and Mrs. Herbert P. Rivere, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption. 349 So.2d 971.

Writ denied.

DIXON and DENNIS, JJ., are of the opinion the writ should be granted.


text:
    CUDAHY FOODS CO. v. RICH PLAN OF BATON ROUGE, INC., et al.
    No. 60704.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Thomas Earl Denson and Mrs. Evelyn Denson applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 349 So.2d 894.

Writ denied.

SANDERS, C. J., and SUMMERS and DENNIS, JJ., would grant the writ.


author: TATE, J.,

text:
    R. C. BURSE v. BOH BROTHERS CONSTRUCTION CO. and Collins Thibodeaux.
    No. 60795.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: R. C. Burse applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 438.

Writ denied.

TATE, J.,

concurs in the denial until such time as we overrule the authorities relating to the issue discussed in Broussard v. Heebe’s Bakery, 263 La. 561, 268 So.2d 656 (1972).


text:
    STATE of Louisiana ex rel. Charles A. HEALY v. Hon. Matthew S. BRANIFF, Section B, Parish of Orleans, State of La.
    No. 60893.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Charles A. Healy applying for writ of mandamus.

Writ denied. According to the return of the trial court of October 28, 1977, it has allowed the filing of the supplemental assignments of error and the appellate record will be filed in this court shortly. The application is therefore moot in this respect. The applicant is not entitled to other relief requested at this time.


text:
    STATE of Louisiana v. George WILSON.
    No. 60884.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: George Wilson applying for writ of mandamus.

Writ denied. Since an order issued on August 18 to return relator to Parish Prison, this application is now moot.


text:
    Mona Fields, wife of/and Arthur P. FIELDS v. Joanlyn W. McELROY, a/k/a Joan Lynn McElroy.
    No. 60787.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Joanlyn W. McElroy applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard.

Writ denied.


text:
    Bernard R. RICE, M. D. v. The OCHSNER MEDICAL FOUNDATION, the Ochsner Foundation Hospital, Inc., the Ochsner Clinic, Merrill O. Hines, M. D., Mr. L. R. Jordan and Frank A. Riddich, M. D.
    No. 60773.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Bernard F. Rice, M. D., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Robert L. THIBODEAUX.
    No. 60550.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Robert L. Thibodeaux applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. John O. FERRER, d/b/a Olivers News Stand.
    No. 60522.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: State of Louisiana applying for writ of certiorari.

Denied.


text:
    CITY OF LAFAYETTE v. J. C. MAGNON.
    No. 60518.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: J. C. Magnon applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. Donald Gene PRINS v. Ross MAGGIO, Director, Louisiana State Penitentiary.
    No. 60494.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Donald Gene Prins applying for writs of habeas corpus and mandamus.

Writ denied. No merit in application.


text:
    TRADERS & GENERAL INSURANCE CO. v. Raymond R. TILLMAN et al.
    No. 60811.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Traders & General Ins. Co. applying for certiorari, or writ or review, to the Court of Appeal, Second Circuit, Parish of Bossier. 349 So.2d 1370.

Writ denied.


text:
    Dayne LeBLANC v. COMMERCIAL UNION ASSURANCE CO.
    No. 60812.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Commercial Union Assurance Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 349 So.2d 1283.

Writ denied.


text:
    James Lawrence WILLIAMS et al. v. STATE FARM MUTUAL AUTOMOBILE INS. CO. et al.
    No. 60714.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: James Lawrence Williams and Mrs. Annie DiMattia Williams applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 349 So.2d 1275.

Writ denied.


text:
    James Lawrence WILLIAMS et al. v. STATE FARM MUTUAL AUTOMOBILE INS. CO. et al.
    No. 60694.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Allstate Ins. Co. applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 349 So.2d 1275.

Writ denied.


text:
    Winston H. SIMS v. Marcella McGinnis SIMS.
    No. 60719.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Marcella McGinnis Sims applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 349 So.2d 974.

Writ granted.

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


text:
    Robert L. RABORN v. LA. HEALTH AND HUMAN RESOURCES ADMINISTRATION, La. Civil Service Commission and La. Dept. of Civil Service.
    No. 60718.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Robert L. Raborn applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 349 So.2d 903.

Granted.

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


text:
    Ronnie E. McADAMS, Individually, etc. v. Dr. Alfred M. HOLDEN et al.
    No. 60722.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Ronnie E. McAdams, Individually, etc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge. 349 So.2d 900.

Writ denied.

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


text:
    CITY OF NATCHITOCHES v. The KEG OF NORTHWESTERN, INC.
    No. 60800.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: The Keg of Northwestern, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 349 So.2d 466.

Writ denied.


text:
    Dorothy Smith, wife of/and Harold R. SMITH v. GOVERNMENT EMPLOYEES INSURANCE CO.
    No. 60699.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Dorothy Smith, wife of/and Harold R. Smith, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 435.

Writ granted.

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


text:
    Frederick YOUNGBLOOD v. BELDEN CONCRETE PRODUCTS, a Division of Marine Concrete Structures, Inc. and United States Fidelity and Guaranty Co.
    No. 60775.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Marine Concrete Structures, Inc., Belden Concrete Products Div., and Fidelity and Guaranty Ins. Co., applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 439.

Writ denied. Judgment not final.


text:
    Cyrus MARINO v. George CLARK, d/b/a New Orleans Plastering Co. and New Orleans Plastering Co. and United States Fidelity and Guaranty Co.
    No. 60774.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Cyrus Marino, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 429.

Writ denied.


text:
    Sessel D. CAIN v. DONALD G. LAMBERT CONTRACTORS, INC.
    No. 60782.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Sessel D. Cain applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 427.

Writ denied.


text:
    METROPOLITAN NEW ORLEANS CHAPTER OF the LOUISIANA CONSUMERS’ LEAGUE, INC., People Power, Mary Elizabeth Pitts, Flossie Milford Simon, Brenda Davillier, Brother Kieran Dugas, Lynn Terrance, Alonde Harrison, Thelma Gath and Rita R. Smith v. The COUNCIL OF the CITY OF NEW ORLEANS and New Orleans Public Service Inc.
    No. 60776.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: The Council of the City of New Orleans and New Orleans Public Service Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 400.

Writ denied.


text:
    BLAISE PARKING AND ENTERPRISES CORP. v. PROJECT SQUARE 221.
    No. 60783.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Project Square 221 applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 349 So.2d 387.

Writ denied.


text:
    STATE of Louisiana In the Interest of Mary Lynn PIERCE, a minor.
    No. 60786.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Helen Pierce, wife of/and Nolan Pierce applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 349 So.2d 379.

Denied.


text:
    Edna Greene, widow of Willis BOLDEN, Individually and on Behalf of her Minor Son, John David Galway v. NEW ORLEANS PUBLIC SERVICE INC. et al.
    No. 60790.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: John David Galway applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 377.

Writ denied.


text:
    Tex M. ARMENTOR v. FRED C. BENTON INDUSTRIAL REPAIRS et al.
    No. 60785.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Tex M. Armentor applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 349 So.2d 367.

Writ denied.


text:
    COMMUNITY CREDIT CENTER CORP. v. Luis ORTIZ and Carl J. Selenberg, d/b/a the Law Firm of Ortiz and Selenberg.
    No. 60813.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Community Credit Center Corp. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 364.

Denied.


text:
    Frances CURTIS v. Alice Meyer KATZ.
    No. 60794.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Alice Meyer Katz applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 362.

Denied.


text:
    Jack F. HAYES v. TAC AMUSEMENT COMPANY, INC. and Operator Sales, Inc.
    No. 60804.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Tac Amusement Co., Inc. and Operator Sales, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 340.

Denied.


text:
    Gayla SMITH v. Irby HEBERT, Clerk of Court and Piggly Wiggly Bunkie Co., Inc.
    No. 60513.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Gayla Smith, applying for'certiora-ri, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion. 348 So.2d 200.

Writ denied.


text:
    STATE of Louisiana v. Alfred SEWELL, III.
    No. 60500.
    Supreme Court of Louisiana.
    Nov. 4, 1977.
   In re: Alfred Sewell, III, applying for writ of habeas corpus.

Writ denied. There is no error in the ruling of the trial judge.


author: GULOTTA, Judge.

text:
    Orlando G. BENDANA v. MID CONTINENT UNDERWRITERS, INC. and Seguros America Banamex, S.A.
    No. 8343.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Rehearing Denied Nov. 10, 1977.
    Dufour, Levy, Marx, Lucas & Osborne, Michael Osborne, New Orleans, for plaintiff-appellant.
    Donald V. Organ, Roger J. Larue, Jr., New Orleans, for defendants-appellees.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment dismissing his claim for benefits under a policy of fire insurance. We affirm. The sole issue on appeal is whether a condition in the policy restricting coverage is applicable to relieve the insurer of liability for the fire loss of plaintiff’s real property. The pertinent clause of the policy provides:

“Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto the Insurers shall not be liable for loss occurring
* * * * * *
(b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days; or
* * * ” (emphasis ours)

The facts are that plaintiff in the early 1960’s purchased the real property which had been used as an apartment or boarding house. The structure was subsequently used as a “school” until September, 1972. According to plaintiff, thereafter and until the time of the fire on May 22, 1973, the property, admittedly in a state of disrepair, was used as a warehouse to store unused refrigerators and stoves in connection with other rental properties owned by plaintiff. The electricity and gas services to the structure had been terminated, and the premises had not been used as a residence or occupied by any persons well in excess of 60 days prior to the date of the fire. According to plaintiff, however, the policy provided for commercial fire insurance coverage, and deliveries and pickups of the appliances in and out of the premises were made within the 60-day period prior to the fire. Under the circumstances, plaintiff contends the property was not vacant and unoccupied, and accordingly the exclusion is not applicable.

Though no written reasons were assigned by the trial judge, implicit in his dismissal of plaintiff’s claim is the factual conclusion that the building was “vacant or unoccupied” as a commercial structure beyond the 60-day period immediately prior to the fire. The record supports his conclusion.

Anna Richard, who resided next door to the property, testified that the building had been empty and deteriorating for several months prior to the fire. She further stated that she did not recall seeing anyone carrying refrigerators or stoves in or out of the property; that the building had been unlocked and the windows had been un-boarded; that she did not recall seeing any contents inside the structure; and, that the property was being vandalized.

Vernon C. LeBlanc, Inspector, New Orleans Fire Department, Fire Prevention Division, testified in deposition that the structure had been periodically inspected prior to the fire. Copies of the inspection reports filed in connection with his testimony indicate that the building was inspected in early January, 1973, twice in February, 1973, and again in April and May, 1973. In all the reports the structure is described as a “vacant dwelling”. Inspector LeBlanc further testified that he had arrived on the scene during the course of the fire. From his inspection at that time, he does not recall observing any stoves or refrigerators on the premises. He further stated that major appliances such as dishwashers or refrigerators do not customarily burn beyond recognition and could be recognized following the fire. His investigation report of the fire lists the building’s “contents” as “none”.

Notwithstanding the testimony of plaintiff and his employee to the effect that the building was used as an appliance warehouse, evidence in the record supports the factual conclusion of the trial judge that the property was vacant or unoccupied for 60 days prior to the fire by any standards of occupancy — residential, commercial or otherwise. Such a factual conclusion based on a credibility determination will not be disturbed absent manifest error.

Accordingly, the judgment is affirmed.

AFFIRMED

      . This provision is in accordance with the requirements of the standard fire insurance policy as set forth in LSA-R.S. 22:691 (Insurance Code).