author: MARCUS, Justice. TATE, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. Roosevelt KAUFMAN.
    No. 56806.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.

      David W. Robinson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., James E. Boren, Ralph Roy, Asst. Dist. Attys., for plaintiff-appel-lee.
   MARCUS, Justice.

Roosevelt Kaufman was indicted by the grand jury for the Parish of East Baton Rouge for the murder of Jessie Guthrie on June 9, 1970 in violation of La.R.S. 14:30. After trial by jury on June 2, 1975, he was found guilty as charged and was subsequently sentenced to life imprisonment at hard labor. On appeal, defendant relies upon seven assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in failing to sustain his motion for a directed verdict of acquittal made after the close of the state’s case. La.Code Crim.P. art. 778 (1966) .

This court can find error in the trial judge’s denial of a motion for a directed verdict and reverse the conviction only when there is no evidence of the crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973).

The state produced evidence to show that Jessie Guthrie and his son-in-law, John House, were night service station attendants at the Fina station, 7554 Scenic Highway in Baton Rouge, the scene of the robbery-murder. These men were last seen by a customer at about four o’clock on the morning of June 9, 1970. When the day attendant arrived at about five twenty in the morning, he found the station empty, the cash drawer gone and the cigarette bay open. An inventory showed that about one hundred and thirty packs of cigarettes and $100 in cash were missing. Keys and a money wrapper kept in the cash drawer were also gone. The body of Jessie Guthrie was found in the mid-morning hours of June 9 floating in a diversion canal in Scotlandville, East Baton Rouge Parish. Three spent shotgun shells (.410 gauge), a money wrapper and a set of keys were recovered from the area near where the body was found. On June 11, the body of John House was found floating in the same canal at approximately the same location. According to the coroner, Guthrie died from gunshot wounds to the neck from which pellets were removed. House died of a gunshot wound of the brain; no pellets were taken from him. The time of death was established as between 4:00 and 6:00 a. m. on June 9.

Testimony was adduced that on the day before the robbery-murder (June 8), Roosevelt Kaufman, Iley Dotch and Delores Williams were together from nine o’clock in the morning until six o’clock that evening drinking and “popping pills” in a recreation park. Kaufman’s car was used by them. Willie Holmes, in his own car, accompanied them to the park. After leaving the park, Holmes discovered that his .410 sawed-off shotgun and shells were missing from the trunk of his car. Later that evening, Holmes met up with Kaufman, Dotch and Williams. While together a shooting incident occurred wherein Holmes obtained his gun out of Kaufman’s car and fired it into the air. They then proceeded to a service station (Kaufman, Dotch and Williams in Kaufman’s car, and Holmes in his car) where Dotch left the gun and three shells with an attendant. According to the attendant, Dotch and two others came back and got the gun and shells about two hours later. Kaufman, Dotch and Williams then met Holmes at a bar where they stayed and talked until about one o’clock in the morning (June 9). During this period, Kaufman was lying on the seat of his car. They then proceeded to a closed service station (Delores Williams driving Kaufman’s car, with Dotch and Kaufman, and Holmes driving his car) where, according to Holmes, Kaufman and Dotch attempted to break into a soft drink machine. Holmes protested, and the three drove off in Kaufman’s car. Holmes drove around for a short while looking for them; however, not finding them, he proceeded to his wife’s house where he arrived about two o’clock in the morning.

Feaster Dorsay, the operator of King’s Motel, located about two blocks from the Fina station and about a ten-to-fifteen minute drive to where Guthrie’s body was recovered, testified that about three o’clock in the morning of June 9, Delores Williams checked into Room 22 and thereafter left in a car. About forty-five minutes later (in the vicinity of four o’clock), after having retired for the night in a room next to Room 22 (Room 23), he was awakened and saw Delores return with a man whom he identified as Kaufman. Although Dor-say did not see Kaufman and Delores leave thereafter, he testified that there was a door adjacent to Room 22 through which an exit could be made without his knowledge. About six that same morning, a man identified as Dotch came to the motel and inquired as to the location of Room 22. Dotch purchased a brown bag from an employee of the motel.

A girl friend of Kaufman, Patricia Butler, with whom he was living, stated that on the night of the murder Kaufman did not come home. However the next morning he came with Dotch and, in the presence of Kaufman, Dotch gave Patricia a brown bag containing about fifteen or twenty packs . of cigarettes. Patricia learned that Kaufman had spent the night in Room 22 of the King’s Motel with Delores Williams. Patricia, having also heard that the cigarettes left by Dotch were stolen, had someone hide them in the loft of her house. Accompanied by her mother’ and Kaufman’s mother, Patricia went to Room 22 and found cigarette cartons (three or four) hidden under the mattress. The cartons were of similar brands given to her by Dotch and taken from the service station. The same three people then went to the diversion canal where the body of Guthrie had been found. There, Patricia found a rag-like diaper which had been left by her sister in Kaufman’s car on the day before the crime. She took the diaper home and burned it. The officer investigating the crime testified that he had seen the diaper in the location where Patricia had found it but had left it there. A picture of the crime scene showed a diaper.

Willie Holmes testified that he arrived home about two o’clock on the morning of the crime and remained there until seven. Having heard that a .410 shotgun had been used in connection with the robbery-murder of the service station attendants, he proceeded to look for Kaufman. After finding him, he asked Kaufman if he had anything to do with the killings, and Kaufman replied that they did. Kaufman told Holmes to get rid of the gun. Holmes then went to Dotch’s sister’s house, got the gun and buried it under a tree on the road to Baker. On June 10, when he heard that Kaufman had been arrested by the police, Holmes retrieved the gun and took it to a shallow canal where he disposed of it. Later, upon directions supplied by him, the police recovered the .410 shotgun.

In view of these facts and circumstances, there was some evidence upon which the jury could conclude that Kaufman was guilty of the crime charged. The trial judge correctly denied defendant’s motion for a directed verdict of acquittal. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in permitting the state’s attorney to refer to the law of conspiracy, over defendant’s objection, in his opening statement to the jury and in charging the jury with the law of conspiracy, over defendant’s objection, when defendant had not been charged with the crime of conspiracy. Defendant further argues that the trial judge erred in permitting the state to bring an alleged coconspirator (Dotch) into the courtroom in furtherance of its “theory of conspiracy.” In regard to this latter contention, defendant's motion for a mistrial was denied by the trial judge.

Defendant was not charged with the inchoate crime of conspiracy (La.R.S. 14:26). Rather, he was on trial for murder (La.R.S. 14:30). Conspiracy to commit the completed offense is not a responsive verdict to the completed offense. La. Code Crim.P. arts. 814 and 815. Nevertheless, when a defendant is on trial for the completed offense, evidence of the crime of conspiracy is permitted under the rule of evidence set forth in La.R.S. 15:455 which provides as follows:

Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making- such declaration be or be not on trial with his code-fendant. But to have this effect a prima facie case of conspiracy must have been established.

(Emphasis added.)

Recently, we considered the import of La.R.S. 15:455 during various stages of trial of a completed crime. State v. Brown, No. 56,690, 326 So.2d 839 (La. 1975); State v. Carter, No. 56,594, 326 So.2d 848 (La.1975). Carter and Brown were alleged to have committed armed robbery of the proprietor of a small grocery in Baton Rouge. Although they were tried together, their appeals were docketed and considered separately by this court. In Brown, we held that, whenever more than one person is charged with the commission of a crime and the state intends to prove a conspiracy existed in order to take advantage of La.R.S. 15:455, it was not improper for the district attorney to refer to the law of conspiracy in his opening statement to the jury. Further finding sufficient evidence to establish a prima facie case of conspiracy to commit a robbery, we found no error in the charge given by the trial judge on the law of conspiracy. In Carter, we held that, since there was no evidence that Carter was part of a conspiracy to commit armed robbery, the trial judge erred in ruling that the determination whether there was a conspiracy between Brown and Carter was a question solely for the jury. Hence, we reversed Carter’s conviction and sentence.

La.R.S. 15:455 clearly states that to have the effect set forth therein, a “prima facie case of conspiracy must have been established.” The type of proof necessary to establish a conspiracy may be by direct or circumstantial evidence. The trial judge must be satisfied that a prima facie showing of conspiracy has been made before La.R.S. 15:455 is applicable. Thereafter, the existence of a conspiracy becomes a question of fact for the jury.

First, we do not find that the trial judge erred in permitting the state’s attorney to refer to the law of conspiracy in his opening statement to the jury. State v. Brown, supra.

Secondly, a review of the record indicates evidence placing defendant Kaufman with one of the perpetrators, Dotch, before and after the commission of the crime. Proof was adduced that Kaufman and Dotch had been together since nine in the morning on the day before the crime was committed. They were last seen by Holmes about one or one thirty on the morning of the crime rifling a soft drink machine in a closed gas station. Kaufman was seen with Delores Williams in a motel in close proximity to the place of the robbery-murder shortly before the time of its happening. The murder weapon, a .410 sawed-off shotgun, was in the car occupied by defendant, Dotch and Williams a few hours before the crime was committed. About six that morning, Dotch was seen at the motel and indicated a prior knowledge that Kaufman and Williams were in Room 22. Kaufman and Dotch were also together later that morning (about 8:30) when Dotch presented Patricia Butler with a bag of cigarettes similar to those taken from the robbed service station. Holmes received word that a robbery-murder had been committed with a .410 shotgun. About nine or ten o’clock on the same morning, Holmes saw Kaufman and asked him if it was true that “they” had robbed the service station and killed those people with his gun. Kaufman’s reply was “yeah.” Kaufman then told Holmes to get rid of the gun which had been placed at Dotch’s sister’s house. Empty cartons of cigarettes were found under the mattress in the motel room occupied by Kaufman and Williams. A diaper which had been in Kaufman’s car the day before the crime was found in the area where the body of Guthrie was discovered.

We are satisfied that a prima facie case of conspiracy was established. Hence, the trial judge did not err in charging the jury with the law of conspiracy. It was clearly the law applicable to the case. La.Code Crim.P. art. 802(1) (1966).

Finally, defendant’s complaint that it was reversible error to permit the state to bring Dotch into the courtroom in furtherance of its “conspiracy theory” is without substance. The state had Dotch brought in so that John Holden, the gas station attendant, could identify him as the man who brought the .410 shotgun and shells to him and later came back for the gun and shells on the night before the murder. Later, Dotch was brought in so that Feaster Dorsay, operator of the King’s Motel, could identify him as the man who asked where Room 22 was located at about six o’clock on the morning of June 9, 1970. Clearly, Dotch’s identity in each instance was relevant and material. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

In sum, Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in finding Patricia Butler competent to testify against him. He contends that their private conversations were privileged. Defendant also argues that, since, Patricia Butler would be incompetent to testify in other jurisdictions which recognize the validity of a common-law marriage, Louisiana’s failure to do so denies him the equal protection of laws guaranteed by the fourteenth amendment.

The law applicable to the competency of a husband and wife to testify against each other in a criminal trial is embodied in La.R.S. 15:461 which provides in pertinent part:

The competent witness in any criminal proceeding, in court or before a person having authority to receive evidence, shall be a person of proper understanding, but;
(1) Private conversations between husband and wife shall be privileged.
(2) Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint or other criminal proceeding, against the other.

The record affirmatively shows that Patricia Butler had never been married to defendant but had been living with him for some four years prior to 1970. By her own admission, she had also lived with another man during this period.

This court has previously held that a concubine is competent to testify, the fact of concubinage bearing only on the credibility of the witness-concubine, and not on her competency. State v. Brown, 28 La.Ann. 279 (1876); Meunier v. Couet, 2 Mart. (O.S.) 56 (1811). La.R. S. 15:461 uses the terms “husband” and “wife.” In view of the relationship between Roosevelt Kaufman and Patricia Butler, they are not “husband” and “wife” as defined under our law. Hence, Patricia Butler was competent to testify and her private conversations with Kaufman were not privileged. Also, laws of the various states do not have to be uniform. Thus, we find no violation of the equal protection clause of the fourteenth amendment on this account. Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, defendant challenges the alleged badgering of a witness, Patricia Butler, by the prosecutor and the use by him of the following language in the presence of the jury: “I don’t want her pussyfooting with me” and “It’s obvious she’s hostile.”

From the record, it is apparent that a misunderstanding developed during the questioning of Patricia concerning what she meant in her testimony by “loose” cigarettes. This was in relation to the cigarettes given to her by Dotch on the morning of the crime. It was at this time that the prosecutor used the objected-to language above quoted. The trial judge, in an effort to clear up the meaning of “loose,” retired the jury and interrogated Patricia himself. During this time, the prosecutor made a remark indicating that, if the witness wanted to spend the night at her home, she had better tell the truth on the witness stand. At about this time, the witness began to weep. After a short pause, the witness appeared to regain her composure, and the jury was returned to the courtroom. However, after a few innocuous questions, she became ill and had to be excused.

Initially, it should be noted that Patricia Butler was a state witness. It was also observed by the trial judge that he considered her evasive. Thus, the reference by the prosecutor that she was “pussyfooting” or perhaps “hostile” was not objectionable. The other remark by the prosecutor, even if considered objectionable, was made out of the presence of the jury. Therefore, defendant could suffer no prejudice thereby.

In the discipline of his court, the trial judge is given wide discretion in controlling the examination of witnesses. La. R.S. 15:275. Unless an abuse of this discretion is shown, this court will not reverse a conviction on this account. We find no such abuse here. Hence, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

The coroner, after testifying as to his examination and the cause of death of the victim, Jessie Guthrie, was questioned as to the cause of death of John House, the other victim in the robbery-murder not named in the indictment charging defendant, and for which he was being tried. Defendant objected on the ground of relevancy. The state contended that evidence of House’s death was admissible as part of the res gestae. Defendant’s objection was overruled. He claims reversible error as a result of this ruling.

In State v. Jefferson, 284 So.2d 882 (La.1973), the accused was charged with and tried for robbing Ledesma. At the same time as Ledesma was robbed, a bystander named Mader was robbed. During trial, reference was made to this other crime. We held that the other crime’s circumstance was an immediate concomitant of the offense with which the defendant was charged and formed, in conjunction with it, one continuous transaction. Therefore, it was admissible as part of the res gestae.

In the instant case, there was evidence that Guthrie and House, attendants at the service station, were both missing on the morning of the robbery-murder. Therefore, evidence of the death and cause of death of House, occurring at the same time as Guthrie, was part of one continuous transaction. The evidence was properly admitted as part of the res gestae. La. R.S. 15:447, 15:448; State v. Major, 318 So.2d 19 (La.1975); State v. Matthews, 292 So.2d 226 (La.1974); State v. Witherspoon, 292 So.2d 499 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973); State v. Jefferson, supra.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that his privilege against compulsory self incrimination was violated by certain questions propounded by the prosecutor on cross-examination when he took the stand in his own defense. At two previous trials, defendant had not taken the stand. He alleges that these questions were directed at his failure to give statements to investigating officers and to testify at his previous trials.

On cross-examination, defendant was questioned by the prosecutor concerning information given by him to Patricia Butler, with whom he was living. Patricia had previously testified that: Kaufman had visited her on the morning of the crime at which time Dotch had given her some cigarettes; she later heard these cigarettes were stolen and had them hidden in the loft of her house; she had gone to Room 22 of the King’s Motel and discovered empty cartons of cigarettes under the mattress ; and she recovered a baby diaper from the area where Guthrie’s body was discovered and had burned it. The prosecutor proceeded to question defendant regarding what defendant had told Patricia. The following colloquy took place:

Q. Yeah, well, you want to tell us what you told her about this thing ?
A. What I told who ?
Q. What you told your wife. . . .
A. I didn’t tell my wife anything.
Q. Do you know why your wife went to the King Motel and looked under the mattress in Room 22 ?
A. No, I don’t.
Q. Do you know why she went down there and got that baby diaper and burned it?
A. No, I don’t.
Q. Because you told her.
A. I didn’t tell Patricia anything.
Q. You told Jessie Lee Butler.
A. I didn’t tell Jessie Lee Butler anything.
Q. When is the first time that you have told—now, we are talking about five years ago—when is the first time that you have publically [sic] made the statement that you are making here today?
A. I never made a statement like
Q. You never did? Why not?
A. Because I don’t know anything about it.
Q. Sounds like to me you know plenty about it.
A. I don’t know anything.
Q. Sounds like to me . . . .
A. You trying to make me know something about it.
MR. ROBINSON: Your Honor, Your Honor .
Q. Sounds like to me you were dead drunk .
MR. ROBINSON: Wait a minute, Your Honor .
Q. When this thing was going on . . .
THE COURT: Wait, now.
MR. ROBINSON: Mr. Roy is going completely overboard. He’s arguing with this witness. I object to all this.
THE COURT: Let the witness complete his answer, Mr. Roy.
Q. Did you tell—did you tell anybody investigating this case who approached you what you are telling us here today?
A. No, I didn’t.
Q. You like it behind bars ?
A. What’s that ?
Q. You’re enjoying your stay here with us?
MR. ROBINSON: Your Honor, Your Honor, just a moment. I want to object to this line of testimony. It’s entirely improper. This is this witness’ day in Court and he’s taken the stand, and he’s testifying and .
THE COURT: The objection is overruled.
MR. ROBINSON: That’s sufficient. I want to assign that, the remarks of counsel and my objection to them and the Court’s ruling as error.

This questioning by the prosecutor of defendant represents a proper inquiry as to whether defendant was the source from which Patricia Butler had received the information upon which she acted during her investigation of the crime. These questions were not directed at defendant’s failure to give statements to investigating officers or to testify at his previous trials. Furthermore, no objection was made after the alleged objectionable questions and answers. The first objection was that the prosecutor “is going completely overboard” and is “arguing with the witness.” The other objection was made when the prosecutor asked defendant if he was enjoying his stay with the state. The ground for this objection was that this line of questioning was “entirely improper.” It is evident that there was no objection that any of the questions was in reference to defendant’s failure to give statements to investigating officers and to testify at his previous trials. Taken in its proper context, the questions do not convey such a meaning.

Accordingly, we find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 7

Defendant contends that the trial judge erred in denying his motion to quash the indictment on the ground that it was returned by an improperly composed grand jury. The basis of the motion is that no women served on the grand jury.

The grand jury returned an indictment against defendant in 1970 when article 402 of the Louisiana Code of Criminal Procedure was effective and provided for exemption of women for jury service except upon written declaration to serve. After defendant’s first conviction and sentence were reversed on appeal and the case remanded for a new trial, a motion for severance filed on September 10, 1973 was granted. Thereafter, on September 17, 1973, the indictment presently under consideration was filed. After Kaufman’s conviction and sentence on retrial were again reversed on appeal and the case remanded for a new trial, the present trial was held on June 2, 1975.

On January 21, 1975, the United States Supreme Court handed down its decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) holding the Louisiana provisions for exemption of women unconstitutional. Subsequently in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the Court held that the Taylor ruling is not to be applied retroactively, as a matter of federal law, to convictions obtained by juries empanelled prior to the date of the Taylor decision. This court has held that consonant with Daniel, the Taylor ruling would not be applied retroactively. State v. Rester, 309 So.2d 321 (La.1975).

This court denied a writ application in State v. Parker, 308 So.2d 284 (La.1975), involving a refusal by the trial judge to quash a grand jury indictment returned in 1973 before Taylor was decided but where the case was scheduled for trial after the decisions in Taylor and Daniel and the effective date of the new Louisiana Constitution of 1974. Later, in State v. Gaines, 315 So.2d 298 (La.1975), this court affirmed the trial court’s quashing of a grand jury indictment which was returned on January 6, 1975, after the effective date of the new constitution.

Article XIV, § 23 of the Louisiana Constitution of 1974 provides:

All writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, rights or causes of action, contracts, obligations,- claims, demands, titles, and rights existing on the effective date of this constitution shall continue unaffected. All sentences as punishment for crime shall be executed according to their terms.

There is no merit to defendant’s contention. Since Kaufman was indicted by the grand jury prior to the effective date of the new constitution, the “proceedings” were “existing” on that date and continued unaffected. This is in accordance with our ruling in State v. Parker, supra. Likewise, it is not contrary to Gaines wherein the indictment was returned after the effective date of the new constitution. In Gaines, the “proceedings” had not commenced prior to the effective date of the new constitution. Therefore, they were not “existing” on that date. This is also in accordance with the Daniel holding in regard to Taylor and our decision in Rester. Hence, the trial judge correctly denied defendant’s motion to quash the grand jury indictment. There is no merit in this assignment of error.

DECREE

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

SANDERS, C. J., and DIXON, J., concurs.

TATE, J., assigns additional concurring reasons.

CALOGERO, J., dissents and assigns reasons.

TATE, Justice

(concurring).

I.

The most troublesome issue presented to this court arose from the district attorney’s reference to the law of conspiracy in his opening statement and from the trial judge’s charge to the jury on the substantive law of conspiracy. For the following reasons, I concur with the judgment of this court.

A criminal conspiracy to commit any given offense is an inchoate crime, separate and distinct from the completed criminal conduct. When the intended criminal conduct has been completed, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar a prosecution for the other. La.R.S. 14:26. Also, a conspiracy to commit the completed offense is not a responsive verdict at a trial for the completed offense. La.C.Cr.P. arts. 814 and 815.

However, when a defendant is on trial for the completed offense, reference to the law of conspiracy may be relevant and permissible only to allow the state to take advantage of the evidentiary exception to the hearsay rule contained in La.R.S. 15:-455. That statute provides:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

This court recently re-examined the law permitting reference to the law of conspiracy in the various stages of a trial for the completed offense. See: State v. Brown, No. 56,690, 326 So.2d 839 (La.1975) and State v. Carter, No. 56,694, 326 So.2d 848 (La., 1975). Carter and Brown were tried together for the armed robbery of a small grocery in Baton Rouge. Their appeals to this court were docketed separately and considered individually by this court.

A majority of this court affirmed the conviction in Brown, while a separately constituted majority reversed the conviction in Carter. In Brown, as in the present case, the court found no error in the district attorney’s mentioning of the law of conspiracy where more than one person was charged with the commission of the crime and the state intended to prove a conspiracy did exist in order to take advantage of the evidentiary rule of La.R.S. 15:455, and where a prima facie showing was later made during the trial.

In Carter, we held that while the question of the existence of a conspiracy was a question of fact for the jury to decide, rulings on the introduction of evidence, including the admission or acts of declarations of one coconspirator against another under La.R.S. 15:455, are mixed questions of law and fact. The trial court must first decide whether a prima facie showing has been made in order to determine whether a defendant will be charged with the responsibility for the acts and declarations of another. After such an initial determination, the existence of the conspiracy becomes a question of fact for the jury. Since this court found no evidence of a conspiracy in Carter, much less a prima facie case, the conviction was reversed.

In the present case, the writer agrees with the majority opinion that a prima facie showing of conspiracy was made. Thus, the references to the law of conspiracy (both the substantive law, La.R.S. 14:26, and the evidentiary rule, La.R.S. 15:455) were permissible: There was more evidence than the mere fact that the defendant was present with the perpetrator before and after the commission of the offense, and that the offense may have been committed by more than one person.

However, prosecutors may well avoid the practice of instructing the jury as to the law of conspiracy in their opening .statements in every case where the offense was committed by more than one person, for, if during the trial there is no prima facie showing of a conspiracy, the prejudicial impact of the earlier reference may necessitate a mistrial (or a reversal of a subsequent conviction).

In his charge to the jury in the present case, the trial judge mentioned only the substantive law of conspiracy, La.R.S. 14:-26, and did not refer to the evidentiary rule contained in La.R.S. 15:455. The only relevance of charging the jury as to the substantive law of conspiracy is to allow them to determine the factual question as to whether a conspiracy existed so that the acts and declarations of a co-conspirator might -be used against the defendant. Failure to instruct the jury as to the evidentiary rule after mentioning the substantive law constituted error. However, in the present case the error does not require reversal of the conviction because the jury had been informed of the evidentiary article shortly prior to the charge. It should be be noted that the substantive law of conspiracy alone is irrelevant and does not constitute the law applicable to the case when the defendant is being tried for the completed offense.

II.

In cross-examination of the defendant, the district attorney asked him, “When is the first time that you have publicly made the statement that you are making here today?”, and “Did you tell anybody investigating this case who approached you what you are telling us here today ?” These questions would normally constitute reversible error as an improper reference to the defendant’s exercise of his Fifth Amendment privilege against self-incrimination.

The writer cannot agree with the majority’s statement that the questions “were not directed at the defendant’s failure to give statements to the investigating officers or to testify at his previous trials.” However, the Louisiana jurisprudence and statutory authority is clear that, absent a contemporaneous objection stating the grounds which defendant relies on, this court will not review the objection. This requirement is to enable the trial court to rule intelligently or to correct an error at the time of the objection and to facilitate this court’s review of the objection on appeal. See: La.C.Cr.P. arts. 841 and 843 (1974); State v. Powell, 325 So.2d 791 (La.1976); State v. Thornton, 284 So.2d 753, 756 (La.1975), and the cases cited therein.

The majority opinion correctly relies on the perhaps unduly technical Louisiana procedural requirements, which in my view unnecessarily relegate to post-conviction proceedings the issue of whether there is an intelligent waiver of a constitutional right. Nevertheless, at least until changed, this applicable procedural rule prevents review at this time of the substantial contention here raised.

Conclusion

Accordingly, with the reservations above set forth, the writer concurs.

CALOGERO, Justice

(dissenting).

I respectfully dissent from the majority’s affirmance of the conviction of this defendant because I believe several substantial errors occurred at his trial which require this Court to order a new trial for him which would be free of violations of his statutory and constitutional rights.

Initially I do not believe that the majority’s treatment of the conspiracy issue is correct. See assignment of error number 2. In order for a trial judge to properly charge a jury on the law of conspiracy, conspiracy must have been part of the law applicable to the case (C.Cr.P. art. 802) either because the defendant was charged with the crime of conspiracy to commit a particular offense, or because the state had been allowed to utilize the provision of R.S. 15:455 which makes a defendant who is part of a conspiracy bound by the acts and declaration of a co-conspirator if they are done in furtherance of the conspiracy. Neither of these two reasons was present in the case before us. Defendant Kaufman was not charged with conspiracy to commit a crime, R.S. 14:26; he was on trial for murder, R.S. 14:30. Also, the procedural article, R.S. 15:455, was not utilized by the state in this trial, nor was it mentioned by the judge in his charge .to the jury. Moreover, in order to take advantage of this procedural article, the state must establish a prima facie case of conspiracy. In the case at hand there was absolutely no evidence that Kaufman was engaged in a conspiracy to rob or to murder. There was merely evidence that Kaufman was with Dotch before and after Guthrie was murdered. Proof that a defendant is seen with a person who committed a crime both before and after the crime is committed does not, by itself, establish a prima facie case that the defendant was involved in a conspiracy to commit the crime.

I believe that the judge’s instructions were not only violative of C.Cr.P. art. 802 and R.S. 15:455 but were also highly prejudicial to Kaufman, who was painted as a “bad man” because he associated with Dotch, the man who apparently killed Jessie Guthrie. Therefore, I feel that this Court should have reversed Kaufman’s conviction and ordered a new trial.

In cross-examination of the defendant, the district attorney asked him these two questions: “When is the first time that you have publically [sic] made the statement that you are making here today?” and “Did you tell anybody investigating this case who approached you what you are telling us here today?” These questions clearly constituted reversible error because they refer to the defendant’s exercise of his fifth amendment privilege against self-incrimination. The first refers to Kaufman’s failure to testify at his two earlier trials, and the second refers to Kaufman’s failure to give a statement to the police who were investigating Guthrie’s murder. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

Apparently the majority feels that the merits of this argument are not before the Court because 1) the questions do not refer to the failure of the accused to testify at his previous trials and to give a statement to police and 2) defense counsel did not object to the questions.

The questions clearly referred to the previous silence of the accused during his trials and his interrogation by police. As for the problem of the objections, whatever merit there may be to the majority’s position that defendant’s attorney did not properly object to the question about defendant’s failure to testify at his previous trials, there is no doubt in my mind that defense counsel did properly object to the question about Kaufman’s failure to give a statement to the police. Defense counsel repeatedly objected, as is revealed in the record quoted in the majority opinion, and was repeatedly interrupted by the prosecutor and the court. He obj ected to the whole “line of testimony” because, he said:

“It’s entirely improper. This is the witness’ day in court and he’s taken the stand, and he’s testifying and . . . . ”

At that point he was interrupted by the judge who overruled his objection. Defense counsel was obviously cut off while he was in the process of directing his objection toward the infringement of defendant’s rights under the fifth amendment. I feel, therefore, that the majority’s treatment of this matter is overly-technical. See my dissent in State v. Calloway, 324 So.2d 801 (La.1975).

Furthermore, although my reasons for dissenting relate to the two errors previously discussed, I do not agree with the majority treatment of assignments number 4 (which deals with the impeachment of a state witness by the prosecutor absent his laying a foundation) and number 5 (which deals with the prosecutor’s questioning of a coroner about the cause of death of a person other than the victim of the crime with which defendant was charged).

For these reasons, I respectfully dissent.

      . Originally, Kaufman and Hey Dotch were charged with murder and jointly tried, convicted and sentenced to death. On appeal, their convictions and sentences were reversed and the case remanded for a new trial. 278 So.2d 86 (La.1973) (on rehearing). On remand, a severance was granted and retrials were separately held. Dotch was again convicted and sentenced to life imprisonment. His conviction and sentence were affirmed on appeal. 298 So.2d 742 (La.1974). After retrial, Kaufman was again convicted and sentenced to life imprisonment. On appeal, this court again reversed his conviction and sentence and remanded for a new trial. 304 So.2d 300 (La.1974). His second retrial resulted in a conviction and sentence of life imprisonment. The present appeal is from this conviction and sentence.

      . Act 527 of 1975 amended article 778 of the Louisiana Code of Criminal Procedure so that the trial judge may no longer direct a verdict of not guilty in a jury trial. This act was approved July 17, 1975. The amendment does not apply to this trial which occurred prior to its enactment.

      . In United, States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), during cross-examination at trial by the prosecutor, Hale was asked why he had not given the police his alibi when he was questioned shortly after his arrest. It was held that this questioning regarding Hale’s pretrial silence was prejudicial and outweighed its probative value. The facts of Hale are clearly distinguishable from the instant case.

      . Repealed by Acts 1974, Ex.Sess., No. 20, § 1, eff. Jan. 1, 1975. Under article V, § 33 of the Louisiana Constitution of 1974, eff. Jan. 1, 1975, women are no longer exempt from jury service. See also rule 25, eff. Jan. 1, 1975, Rules of the Supreme Court of Louisiana.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    STANLEY DIEFENTHAL MERMENTAU MINERAL AND LAND COMPANY and Southern Scrap Material Company, Ltd. v. INTERNATIONAL COMPANIES, INC., d/b/a International Appraisal Company and Edgar A. Tharpe, II.
    No. 7365.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Refused July 1, 1976.
    Shushan, Meyer, Jackson, McPherson & Herzog (Donald A. Meyer), New Orleans, for plaintiffs-appellees.
    Monroe & Lemann (Eugene G. Taggart, J. Wayne Anderson), New Orleans, for defendants-appellants.
    Before GULOTTA and SCHOTT, JJ., and P. C. St.AMANT, Assigned Judge.
   SCHOTT, Judge.

Defendants have appealed from a judgment in favor of plaintiffs for $3500 for damages resulting from defendants’ breach of contract.

In May 1972, plaintiffs employed defendants to act as real estate appraisers in connection with property of plaintiffs which was the subject of litigation between plaintiffs and the Orleans Levee Board. Defendants’ compensation was to be $3500 plus a per diem for time spent by defendants testifying in court.

The Levee Board had already taken possession of a part of plaintiffs’ property and had commenced digging, dredging and accumulating spoil thereon.

The trial of the case between plaintiffs and the Board was scheduled for January, 1973, and would mainly concern plaintiffs’ damages. But in December, 1972, the Board notified plaintiffs that the project was being cancelled as a result of the rejection by the voters of a bond issue designed to pay for the project.

Plaintiffs’ case against the Levee Board was then converted into a claim for damages caused by the Levee Board’s activities on plaintiffs’ property and its occupancy of the property during some 21 months. Defendants were notified to convert or modify their appraisal to conform to this new situation.

The trial date in January, 1973, was upset and in due course the case against the Board was scheduled for trial the following June. In the meantime a number of meetings were held between representatives of plaintiffs, defendant Tharpe, plaintiffs’ other appraiser, Frederick M. Guice and plaintiffs’ engineer, Frank C. Fromherz, in preparation for the trial. A few days before the trial of the case between plaintiffs and the Levee Board defendant Tharpe notified plaintiffs that he would be out of the country on another appraisal assignment on the day of the trial and would not be available for court testimony. Plaintiffs had Tharpe served with a subpoena but he did not appear for the trial. At the trial plaintiffs attempted to introduce defendants’ appraisal report but the trial judge properly maintained the objection made to the introduction of the report by the attorneys for the Levee Board and the report was not admitted into evidence. Plaintiffs recovered from the Levee Board a sum for damages sustained as a result of the Board’s activities and they recovered the fees of their attorney, their engineer and appraiser Guice for their services. Plaintiffs were unable to recover from the Levee Board the fee which they had paid to defendants because plaintiffs were unable to produce Tharpe as their witness at the trial. It is that fee which plaintiffs seek to recover from defendants in the instant case.

At the trial defendant Tharpe attempted to show that the change in the circumstances of the case from a permanent taking by the Levee Board to a temporary taking of 21 months created a brand new appraisal situation as opposed to a mere revision of his appraisal report. He attempted to identify his appraisal services with engineering services which were to be performed by Fromherz. The engineering problem had changed considerably as a result of the change in circumstances because of drainage problems which had been created on the land by the Levee Board’s activities while they were in possession. But aside from the fact that defendants provided no reasonable explanation as to why their services were in the same category as those of the engineers the other appraiser employed by plaintiffs, Mr. Guice, stated that when the situation changed he was simply required to make a mathematical computation to convert the claim from a permanent loss to a 21 month loss without any need to change the basic appraisal report.

Thus, when the case went to trial in June, 1973, without Tharpe, the report he had furnished to plaintiffs for $3500 was worthless to them. Its value as a report was entirely dependent upon its being supported at the trial with the live testimony of its author. The original contract clearly contemplated such a trial appearance and Tharpe’s failure to make that appearance constituted a breach of contract which caused the report’s price to be a total loss for plaintiff.

In this Court, defendants speak of a natural obligation plaintiffs had to compensate defendants for their work on the report and principles of equity running in defendants’ favor, but we find no basis for this position. Because of defendants’ conduct plaintiffs were unable to use the report. Surely they were not enriched by defendants’ work under these circumstances. Defendants lost the value of their services, not because of plaintiffs’ conduct but because of Tharpe’s failure to spend the little time in court which was necessary to give the report some value.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: WATSON, Judge.

text:
    PARISH OF ST. LANDRY ex rel. GOUDEAU, Plaintiff-Appellee, v. TURF LOUNGE, LTD., et al., Defendants-Appellants.
    No. 5464.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 21, 1976.
    William Tracy Barstow, Opelousas, for defendants-appellants.
    Young & Burson, by I. Jackson Burson, Jr., Eunice, for plaintiff-appellee.
    Before HOOD, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Defendants, Clifton Thibodeaux, James Howard Jones, and Turf Lounge, Ltd., have appealed from a trial court judgment which found them operating a gambling house, a public nuisance under LSA-R.S. 13:4721, on the premises of the “New Turf Lounge”. Defendant, Turf Lounge, Ltd., is a Louisiana corporation; Jones is president of the corporation and leased the property from owner Thibodeaux in the corporate name. Jones is the proprietor of the “New Turf Lounge”.

Under LSA-R.S. 13:4724(4) a permanent injunction without bond was issued enjoining both Thibodeaux and Jones from conducting the nuisance of gambling anywhere within the state. Other occupants of the premises, particularly John Moreau and Sylvia Vige, were also enjoined under the same section from conducting the nuisance of gambling. Owner-lessor Thibo-deaux was found by the trial court to have full knowledge of the gambling and an order of abatement was entered under LSA-R.S. 13:4724(5), closing the Turf Lounge for a period of one year from February 3, 1976, its use for any purpose whatsoever during that period being forbidden.

Defendants have appealed from the judgment of the trial court, contending that the trial court erred in holding that defendants had violated the provisions of LSA-R.S. 13:4721.

LSA-R.S. 13:4721 defines a gambling house as:

* * * * * *
“(1) any place whatever where any game of chance of any kind or character is played for money, for wagers, or for tokens, and where the conduct of such place operates, directly or indirectly, to the profit of one or more individuals and not exclusively to the direct profit of the actual participants in such game; and
“(2) any place whatsoever where races, athletic contests and sports and games are not actually held and where opportunity is afforded for wagering upon races, athletic contests, sports and games of chance.”
“All gambling houses as herein defined are declared to be public nuisances, and the owner thereof, and the agent for such owner, or the lessee, sublessee or other occupants thereof are declared to be guilty of maintaining a public nuisance.”

This action was brought under the provisions of LSA-R.S. 13:4722 by District Attorney Goudeau on behalf of the Parish of St. Landry.

The trial court, in reasons for judgment, pointed out that both the Louisiana Constitution of 1921 in article 19, § 8, and the Louisiana Constitution of 1974 in article 12, § 6, provide for suppression of gambling, and the Constitution of 1974 also provides for definition of gambling by the legislature. Both the owner and lessee, Thibodeaux and Jones, admitted that there was gambling on the premises of the Turf, and' the only question is whether the gambling is within the purview of LSA-R.S. 13:4721. Defendants-appellants contend that the gambling did not operate to the profit of the owner and lessee but only to the profit of those participating in the games.

Among the indicia of gambling at the New Turf Lounge found by the trial court to constitute a violation of LSA-R.S. 13:4721 were:

1. Clifton Thibodeaux’s three convictions for gambling at the Turf in violation of LSA-R.S. 14:90; and
2. Two convictions of John Moreau, a blackjack dealer, for gambling at the Turf in violation of LSA-R.S. 14:90.

Defendants contend that prosecution under the criminal statute, LSA-R.S. 14:90, cannot be considered in a suit to abate the public nuisance of a gambling house. While the criminal statute, LSA-R.S. 14:90, defines gambling, LSA-R.S. 13:4721 defines the civil nuisance of maintaining a gambling house. The statutes are therefore necessarily different in their definitions. We find no error in the trial court’s consideration of convictions for gambling in determining whether or not the public nuisance of a gambling house existed on the premises of the “New Turf Lounge”. The general rule is found at 66 C.J.S. Nuisances § 48:

“A gaming or gambling house is usually considered to be a nuisance, both at common law and by force of statute.” 66 C.J.S., page 800
and
“A statute, declaring various places or premises where persons resort for the purpose of gambling a common nuisance, has been construed to cover at least all those acts of gambling specifically defined and prohibited by the penal statutes, . . .”66 C.J.S., page 801

The other evidence was as follows:

Milton Wilson, a senior state trooper, testified that he entered the New Turf Lounge on May 11, 1974, and observed a poker table and a blackjack table. A man was standing behind the blackjack table shuffling cards and said 'yes sir, blackjack right here’ (TR. 15). The trooper went to the table; bought $20 worth of silver dollars with currency; played blackjack for thirty minutes; and lost $38. He was advised that a dice game was to start in a few minutes. There were no markings on the tables, and the trooper did not know what happened to the profits.

Ellis Bienvenu, also a state trooper, testified that he went to the New Turf Lounge in St. Landry Parish on May 18, 1974, in the course of conducting a vice investigation and observed a dice table in operation. A man known to the trooper, Henry Delahousse, Sr., was conducting the game and covering bets for the house. There were also two other house men at the dice table who were unknown to the trooper. One of these house men was turning the cards and the other would rake in the dice after a roll. Two customers known to the trooper played at the dice table during the course of the evening. Trooper Bienvenu did not observe anyone paying to play or any money being taken out for the house from the game. He was under the impression that the house won more than the participants while he was present.

John Newton, a lieutenant with the Louisiana State Police, testified that he supervised an investigation at the New Turf Lounge in St. Landry Parish, on May 2, 1974. Lt. Newton observed a card table and a blackjack table in a back room. Three men were playing blackjack, using silver dollars for chips. At one point, the owner of the lounge, Clifton Thibodeaux, handed the dealer a bank bag containing silver dollars. Lt. Newton did not observe any percentage being taken out of the game for the house.

Mary Pendergraft, an employee of the New Orleans Police Department, testified that she was on special assignment investigating gambling in St. Landry Parish on January 15, 1975, and went with investigator David Hunter to the Turf. In a rear room of the lounge, there was a table with three men playing cards and a blackjack table with a dealer she later identified as John Moreau. When she and Hunter approached the blackjack table, Moreau asked whether they preferred poker or blackjack and she told him blackjack. The minimum bet was $1.00; she played approximately 30 minutes. She hit 21 points or blackjack but dealer Moreau did not offer to pass the deal to her.

David Hunter, an investigator with the Louisiana Department of Justice, testified that he made a gambling investigation at the Turf in St. Landry Parish on January 15, 1975, in the company of Mary Pender-graft. His testimony was essentially the same as that of Ms. Pendergraft.

Lawrence Antoine, an investigator for the Louisiana Department of Justice, testified that he conducted a gambling investigation at the New Turf Lounge on May 22, 1975, in the company of a Louisiana state trooper. He and the trooper were served drinks and then went to the back room where they observed a blackjack table containing stacks of silver'dollars and currency. The dealer identified himself as John Moreau; Antoine played blackjack for approximately 15 minutes. Hunter returned to the premises on December 12, 1975, with Trooper Latiolais, and they purchased drinks. A white female who identified herself as Toni was dealing blackjack. Hunter exchanged $10 in bills for ten silver dollars and played blackjack approximately 10 minutes. The deal then passed to John Moreau. Hunter identified photographs in the record, taken in his presence by Trooper Waymire of the Louisiana State Police. The trial court observed that the blackjack table in the photographs is not the height of an ordinary card table but “just right for blackjack” (TR. 29).

James Edward Waymire, a trooper first class with the Louisiana State Police, identified photographs P-9—P-12 taken by him.

Lt. Louis M. Ackal, a lieutenant with the Louisiana State Police, testified that he directed a raid of the New Turf Lounge on December 17, 1975.

Gerald Latiolais, a trooper with the Louisiana State Police, testified that he participated in an investigation at the New Turf Lounge on December 12, 1975, with Larry Antoine. They both ordered bourbon and water, paid for the drinks and went to the room in the rear where they observed the blackjack table pictured in P-9. Latiolais exchanged a $10 bill for ten silver dollars and then played blackjack approximately 20 minutes during which time he lost the $10.

Clifton Thibodeaux testified that he supports himself partly with gambling but denied receiving any profits from gambling at the New Turf. His rent from the New Turf was $900 per month which was his major source of income. He brought silver dollars to the tables when he was running the New Turf merely as an accommodation.

James Howard Jones testified that he leases and manages the Turf Lounge. He has no employees on a regular basis other than his wife, but employs girls from time to time to dance and tend bar. John Moreau was not an employee but came in merely to play cards. Jones frankly admitted seeing card games played in the back room, but denied dividing any profits from the game. Although he did not prohibit gambling, he said he made very little selling drinks to the gamblers.

L. B. Carriere, chief criminal deputy for the parish of St. Landry, testified that he was asked to conduct an investigation at the New Turf Lounge and went with Milton Hargroder and Otis Lomenick to take pictures of what was said to be a dice table. The pictures were taken to the district attorney and the sheriff who said that the table appeared legal.

Morton J. Goudeau, III, district attorney for St. Landry Parish, testified that the instant case is the first padlock proceeding brought by his office. District Attorney Goudeau testified that he told Thibodeaux and the sheriff that a group of people who gather to play cards among themselves are not operating in violation of the law.

Malcolm Millet, a major in the state police, testified that he had been asked by Goudeau to investigate gambling at the Turf Lounge.

Sheriff Adler V. Ledoux, Sheriff of the Parish of St. Landry, testified that he knew Clifton Thibodeaux and had discussed what constituted illegal gambling with Thibodeaux, advising him that taking a cut for the house constituted illegal gambling.

Sylvia Taylor Vige, wife of James Al-don Vige, testified that she was employed at the Turf Lounge by Clifton Thibodeaux during December, 1975, for about two weeks and worked in the back room where she occasionally dealt blackjack. Mrs. Vige said that she did not provide any money for financing the blackjack game but there was usually around $100 at the table when she dealt. The proceeds of the game were split by Thibodeaux, Jones and John Moreau and sometimes they would give her money. She did not know why the money was divided, but only knew that these three men received it.

Ms. Vige’s testimony was the only direct evidence that the Turf Lounge was a gambling house in the sense that the play operated directly to the benefit of anyone not actually participating in the games. There would of course be indirect profit to defendants-appellants in the form of increased sales of liquor as the result of the gambling activity on the premises. It was within the province of the trier of fact to accept or reject Ms. Vige’s testimony and to judge her credibility. As the trial court pointed out, “. . . the direct testimony of Sylvia Taylor Vige, who banked and dealt a blackjack game . . . .” was that the profits of the game were split between Thibodeaux, Jones and Moreau. The trial court accepted Ms. Vige’s testimony and we see no reason to question his evaluation of this witness.

Our review of the record indicates a more than ample basis for the trial court’s conclusion that the premises constituted a gambling house within the purview of LSA-R.S. 13:4721. Particularly impressive is the direct evidence, given by Ms. Vige and accepted by the trial court, that the proceeds of the blackjack game were split by Thibodeaux, Jones and Moreau. Other strong support for the trial court’s conclusion is found in the convictions of Thibodeaux and Moreau for gambling on the premises. While the trial court found several other less direct indicia of gambling, we do not find it necessary to comment on these.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against defendants-appellants.

AFFIRMED.


author: CUTRER, Judge.

text:
    James DUNBAR, Plaintiff-Appellee, v. Earl GRIFFIN et al., Defendants-Appellants.
    No. 5428.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 21, 1976.
    Dale, Owen, Richardson, Taylor & Mathews by Daniel R. Atkinson, Baton Rouge, Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-appellants.
    Gravel, Roy & Burnes by T. Gerald Henderson, Alexandria, for plaintiff-appel-lee.
    Before CULPEPPER, WATSON and CUTRER, JJ.
   CUTRER, Judge.

This is an appeal by defendants and a third party defendant from a judgment holding them liable for injuries to plaintiff allegedly inflicted on him by a gunshot fired by a police officer acting in the course and scope of his employment with the City of Bunkie. As hereinafter amended, the judgment of the district court is affirmed.

This suit was filed on January 10, 1973, by plaintiff, James Dunbar, against the following defendants: Earl Griffin; his employer, the City of Bunkie (hereinafter sometimes referred to as “Bunkie”); the City’s insurer, United States Fidelity and Guaranty Company (hereinafter sometimes referred to as “Fidelity”); and Warren Constant, Jasper Candella, Marvin Lilad-hal, Fred Feeney, Russell Vanchiere and Frank Gallerson, individually and/or as officers of the City of Bunkie. Plaintiff alleged in his petition that on or about January 10, 1972, while acting in the course and scope of his employment as a police officer for the City of Bunkie, Griffin negligently inflicted a gunshot wound on plaintiff. Plaintiff alleged negligence on the part of Bunkie and its executive officers in failing to afford Griffin the proper training necessary for him to fulfill the duties he could foreseeably be expected to perform in the course of his employment as a police officer. Plaintiff further alleged that Bunkie had a policy of insurance in effect at the time of the incident with Fidelity which covered the actions of Griffin. As a result of the negligent acts of defendants, plaintiff alleged that he suffered severe physical pain prolonged hospitalization and permanent disability, and he alleged damages totaling $220,000.00. Defendants answered with a general denial, except as to insurance coverage in favor of Bunkie, coupled with the pleading of facts which amounted to justification for the actions of Griffin. Alternatively, pleas of contributory negligence and assumption of the risk on the part of plaintiff were made. Subsequently, a third party demand was filed by Bunkie and Fidelity against American Home Assurance Company (hereinafter sometimes referred to as “American Home”) alleging that American Home had issued a policy of insurance in favor of the Bunkie Police Department which covered the actions of Griffin. Bunkie and Fidelity alleged that American Home was liable for all or part of the principal demand, should they be held liable to plaintiff.

An intervention was filed by the State of Louisiana, through the Louisiana Health and Human Resources Administration. The petition alleged that plaintiff or defendants were indebted to intervenor in the amount of $4,520.81 for medical services rendered to plaintiff in connection with the injuries referred to in plaintiff’s petition. In addition intervenor filed a lien and privilege on any sum collected by plaintiff in the suit, in accordance with LSA-R.S. 9:4751^1755.

Exceptions of no cause of action, no right of action, prescription and laches were filed by defendants as to the intervention filed by the Louisiana Health and Human Resources Administration. These exceptions were referred to the merits, and subsequently overruled by the trial judge when he granted the demands of interve-nor. No appeal has been taken as to these issues and the judgment as to these exceptions has become final.

A third party demand was filed by American Home against Fidelity alleging primary insurance coverage by Fidelity’s policy, and alternatively that the two policies were joint policies so that each company was liable for one-half of the total award, subject to the limits of the two policies.

Following a trial on the merits, the trial judge gave written reasons for judgment in which he reached the following conclusions: that Griffin was not justified in shooting plaintiff and that his actions constituted negligence; that Griffin had • not been adequately trained for his job as a police officer; that no showing had been made of negligence on the part of the mayor and aldermen of Bunkie; that plaintiff had suffered damages in the total amount of $50,000.00; and that both insurance companies were liable for the negligence of their insureds in the amount of $25,000.00 each. A formal judgment was signed by the trial judge August 1, 1975. From that judgment appeals have been prosecuted by Bunkie, Fidelity and American Home.

The first issue raised on appeal involves the findings of fact by the trial judge. Appellants contend that the trial judge erred in finding that the actions of Griffin were not justified. They argue that Griffin was confronted with a potentially dangerous situation. The events took place in a crowded bar with dim lighting. Plaintiff had just been placed under arrest for a battery committed in front of three police officers, including Griffin. Plaintiff had started moving back away from the officers declaring that he would not allow them to arrest him. At this point Griffin drew his weapon and fired at plaintiff, wounding him in the abdominal region. Appellants argue that under the circumstances Griffin had to assume that plaintiff was armed with a weapon and about to use it to prevent his arrest.

Eight witnesses testified as to the events leading up to the shooting of the plaintiff, and each witness told a story that varied somewhat from the other stories told. There was a conflict as to what transpired before the shooting and as to the physical actions of the plaintiff just before he was shot. The trial judge accepted the following version of what took place:

“Earl Griffin went to the night club in question . . . in a police car. He left the car with the motor running and the keys in the switch; he went inside, ordered drinks, partook of alcoholic beverages and danced. When a patron observed to others that he should not be doing this in uniform, Griffin struck this man twice. (See testimony of Willie Garner). While Griffin was inside, the Plaintiff allegedly removed the keys from the police car, which Griffin had left outside, unattended, .... While petitioner denied this, the court accepts the testimony of Otis Frazier on this point. Otis Frazier gave the information about the keys to Griffin; he went to Dunbar for his keys. Dunbar was at a table with several friends; he denied having Griffin’s keys and after some words, offered to let Griffin search him. Petitioner and some of his friends left the place as Griffin called the police department to report his keys being taken. Two white policeman [sic] came to the night club, John Daigrepont and Eldred Desselle. After they had talked to Otis Frazier, these two decided to go get Petitioner at his home and to bring him back to the club. They told Petitioner they had an eye witness to his taking the keys. When they brought Petitioner back to the club they faced him with Frazier, who again repeated, he had seen Petitioner remove the keys from Griffin’s police car. Thereupon, Petitioner called him, Frazier, a lier, struck him with his fist and knocked him out. Daigrepont testified that he then told Petitioner he was under arrest. Desselle testified that it was Griffin who told Petitioner he was under arrest. He also testified that Petitioner pushed Griffin and said, ‘You won’t take me’, and then he heard the shot. Several witnesses testified Petitioner had his hands up as Griffin faced him. Daigrepont testified: T lost sight of his hands; it worried me . his hands went down, and the shooting followed.’ With three policemen there, with drawn guns, and petitioner totally unarmed, there was no legal justification for Griffin’s shooting him.”

Credibility is an important aspect in the analysis of the evidence presented in this case. The wide variance of the testimony presented at the trial level made it imperative for the trial judge to determine the credibility of the various witnesses and make his findings of fact according to his conclusions as to credibility. We find no manifest error on the part of the trial judge in his findings of fact. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The next issue raised on appeal involves the damage award, $50,000.00. Appellants argue that the award is excessive for the type injury suffered by plaintiff. Plaintiff was shot in the abdomen, the bullet hitting the cecal area, the first part of the large intestine where the small intestine drains into the large intestine. This portion of the intestine was hooked to the skin and attached to a tube so that waste material could pass to the outside of the body and thereby prevent contamination of the area surrounding the wound. The initial exploratory operation, which included the above-described procedure, required a large mid-line incision of the abdomen and a smaller incision on the side of the abdomen to begin the drainage of waste material from plaintiff’s abdominal region. After a few days plaintiff’s intestinal activity should have improved but did not. He also had some fever. A second operation was required to determine if plaintiff had developed an abscess in the region of the wound. It was learned that an obstruction was present in the intestine which required removal. This necessitated a third operation to remove a kink in the intestine which was causing the obstruction. A long tube we threaded through the plaintiff’s intestine to make sure there was a passage through it. This tube was subsequently removed once the doctors were certain plaintiff had regained intestinal activity. A subsequent operation was required to close the opening in his side through which waste material had been passing since plaintiff’s initial operation. Within a few hours of this operation, however, plaintiff went into shock. The incision was reopened for exploration to determine what had caused him to go into shock. It was learned that plaintiff had a nucosal bleeder along the area that had been closed in the intestine/ This was repaired and plaintiff was subsequently discharged from the hospital.

The record indicates plaintiff sustained very serious injuries as a result of the gunshot wound. He was hospitalized twice and underwent five major surgical procedures. In addition to the above-described injuries to plaintiff’s abdominal region, he suffered an injury to a nerve leading to one of his legs, which has resulted in a twenty percent permanent partial disability. We find that appellants have failed to sustain their burden of proving any abuse of the much discretion left to the judge in the assessment of damages under LSA-C.C. article 1934(3). Wyble v. St. Paul Fire and Marine Insurance Co., 316 So.2d 819 (La.App. 3rd Cir. 1975).

The final issue raised on appeal involves the language of the formal judgment. It does not conform to the results clearly intended by the trial judge’s written reasons. We amend the judgment to conform with the views expressed by the trial judge in his written reasons for judgment and the views expressed in our foregoing opinion, as follows: It is hereby ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, James Dunbar, and against the defendants, the City of Bunkie and United States Fidelity and Guaranty Company, in solido, in the sum of TWENTY-FIVE THOUSAND AND No/100 ($25,000.00) DOLLARS, together with legal interest thereon from the’ date of judicial demand until paid. It is further ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, James Dunbar, and against defendant, the City of Bunkie, for an additional sum in the amount of TWENTY-FIVE THOUSAND AND No/100 ($25,000.00) DOLLARS, together with legal interest thereon from the date of judicial demand until paid.

It is further ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the City of Bunkie on its third party demand against American Home Assurance Company for the sum of TWENTY-FIVE THOUSAND AND No/100 ($25,000.00) DOLLARS, together with legal interest thereon from the date of judicial demand until paid.

It is further ORDERED, ADJUDGED AND DECREED that there be judgment in favor of intervenor, the State of Louisiana, through the Louisiana Health and Human Resources Administration, and against plaintiff, James Dunbar, in the sum of FOUR THOUSAND, FIVE HUNDRED TWENTY AND 81/100 ($4,520.-81) DOLLARS. Costs are assessed one-half (i/2) against defendants, the City of Bunkie and United States Fidelity and Guaranty Company, and one-half (i/¿) against third party defendant, American Home Assurance Company. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are taxed against appellants.

Affirmed as amended.

       Griffin died prior to trial and no substitution of party-defendant is reflected by the record.


author: WATSON, Judge. CUTRER, Judge

text:
    Jerome BOURQUE, Jr., Plaintiff-Appellee, v. Adrien DUPLECHIN et al., Defendants-Appellants.
    No. 5396.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearings Denied May 21, 1976.
    Writs Refused July 1, 1976.

      Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, Lucius A. Hornsby, Jr., Lafayette, for defendants-appellants.
    Voorhies & Labbe by D. Mark Bienvenu, Lafayette, for plaintiff-appellee.
    Before WATSON, CUTRER and PETERS, JJ.
   WATSON, Judge.

Plaintiff, Jerome Bourque, Jr., filed this suit to recover damages for personal injuries received in a softball game. Made defendants were Adrien Duplechin, a member of the opposing team who inflicted the injuries, and Duplechin’s liability insurer, Allstate Insurance Company. The trial court rendered judgment in favor of plaintiff against both defendants and defendants have appealed. We affirm.

Both Duplechin and Allstate contend that the trial court erred: in not finding that Bourque assumed the risk of injury by participating in the softball game; and in failing to find that Bourque was guilty of contributory negligence. Defendant Du-plechin also. contends that the trial court erred in finding him negligent and in finding that the injury to plaintiff Bourque occurred four to five feet away from the second base position in the general direction of the pitcher’s mound. Allstate further contends that the trial court erred in finding coverage under its policy which excludes injury intended or expected by the insured.

On June 9, 1974, Bourque was playing second base on a softball team fielded by Boo Boo’s Lounge. Duplechin, a member of the opposing team sponsored by Murray’s Steak House and Lounge, had hit the ball and advanced to first base. A teammate of Duplechin’s, Steve Pressler, hit a ground ball and Duplechin started to second. The shortstop caught the ground ball and threw it to Bourque who tagged second base and then stepped away from second base to throw the ball to first and execute a double play. After Bourque had thrown the ball to first base, Duplechin ran at full speed into Bourque. As Duple-chin ran into Bourque, he brought his left arm up under Bourque’s chin. The evidence supports the trial court’s factual conclusion that the collision occurred four or five feet away from the second base position in the direction of the pitcher’s mound. Duplechin was thrown out of the game by the umpire because of the incident.

Pertinent to the trial court’s decision was the following testimony :

Plaintiff Bourque, age 22 at the time of trial, testified that he is 5'7" tall. He was well out of the way when he was hit, standing four or five feet from second base and outside the base line. He knew there was a possibility of a runner sliding into him but had never imagined what actually happened, which he regarded as unbelievable under the circumstances.

Gregory John Laborde, a student at Tulane Law School, testified that he witnessed the incident from the dugout along the first base line and saw Duplechin turn and run directly toward Bourque who was standing four or five feet from second base toward home plate. Duplechin did not attempt to slide or decrease his speed and his left arm came up under Bourque’s chin as they collided. Duplechin had to veer from the base path in order to strike Bourque.

Donald Frank Lockwood, baseball coach at USL, testified as an expert witness that: softball is a noncontact sport; in a forced play to second such as this, the accepted way to break up a double play is by sliding.

Steve Pressler, who hit the ground ball that precipitated the incident, testified that the sides were retired as a result, because the collision was a flagrant violation of the rules of the game.

Duplechin admitted that he ran into Bourque while standing up in an attempt to block Bourque’s view of first base and keep him from executing a double play. Duplechin also admitted that he was running at full speed when he collided with Bourque, a much smaller man. Duplechin attributed the accident to Bourque’s failure to get out of the way.

Oral surgeon John R. Wallace saw Bourque following the accident and said the nature of the injury and the x-rays indicated that it was caused by a blow from underneath the jaw. Dr. Wallace characterized the injury as one that may have been common in football before the use of mouthpieces and faceguards.

While other testimony was presented, both cumulative and contradictory, the evidence summarized above provides a reasonable evidentiary basis for the trial court’s conclusions.

There is no question that defendant Duplechin’s conduct was the cause in fact of the harm to plaintiff Bourque. Duplechin was under a duty to play softball in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players. This duty was breached by Duplechin, whose behavior was, according to the evidence, substandard and negligent. Bourque assumed the risk of being hit by a bat or a ball. Benedetto v. Travelers Insurance Company, 172 So.2d 354 (La.App. 4 Cir. 1965) writ denied, 247 La. 872, 175 So.2d 108; Richmond v. Employers’ Fire Insurance Company, 298 So.2d 118 (La.App. 1 Cir. 1974) writ denied, La., 302 So.2d 18. Bourque may also have assumed the risk of an injury resulting from standing in the base path and being spiked by someone sliding into second base, a common incident of softball and baseball. However, Bourque did not assume the risk of Duplechin going out of his way to run into him at full speed when Bourque was five feet away from the base. A participant in a game or sport assumes all of the risks incidental to that particular activity which are obvious and foreseeable. A participant does not assume the risk of injury from fellow players acting in an unexpected or unsportsmanlike way with a reckless lack of concern for others participating. Hawayek v. Simmons, 91 So.2d 49 (La.App. Orl.1956); Carroll v. Aetna Casualty & Surety Company, 301 So.2d 406 (La.App. 2 Cir. 1974); Rosenberger v. Central La. Dist. Livestock Show, Inc., 312 So.2d 300 (La.1975). Assumption of risk is an affirmative defense which must be proven by a preponderance of the evidence, and the record here supports the trial court’s conclusion that Bourque did not assume the risk of Duplechin’s negligent act.

There is no evidence in the record to indicate contributory negligence on the part of Bourque.

Allstate contends on appeal that there is no coverage under its policy, because its insured, Duplechin, committed an intentional tort and should have expected injury to result. However, while Duple-chin’s action was negligent and perhaps even constitutes wanton negligence, the evidence is that he did not intend the harm that resulted. The distinction between an intentional tort and one resulting from negligence is summarized in Law of Torts, 4th Ed., by William L. Prosser, at pg. 32, as follows:

“ . . . the mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong.”

Duplechin was not motivated by a desire to injure Bourque. Duplechin tried to break up a double play with a reckless disregard of the consequences to Bourque. Duplechin’s action was negligent but does not present a situation where the injury was expected or intended. There is coverage under Allstate’s policy.

The trial court awarded plaintiff Bourque $12,000 for his pain and suffering and $1,496.00 for his special damages. There is no dispute about the amount awarded. Bourque’s jaw was fractured; his chin required plastic surgery; seven teeth were broken and had to be crowned; and one tooth was replaced by a bridge.

There is no manifest error in the trial court’s conclusions which we summarize as follows: plaintiff Bourque’s injuries resulted from the negligence of defendant Duplechin; Bourque was not guilty of contributory negligence and did not assume the risk of this particular accident; and defendant Allstate did not prove that coverage was excluded under the terms of its policy.

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of defendants-appellants, Adrien Duplechin and Allstate Insurance Company.

AFFIRMED.

CUTRER, J., dissents and assigns written reasons.

CUTRER, Judge

(dissenting) :

The majority affirms the lower court’s judgment against the tortfeasor’s liability insurer, concluding that the tortfeasor negligently injured the plaintiff. This writer strongly dissents, basing this disagreement on a finding that the majority opinion has wrongly characterized the tortfeasor’s acts as negligent rather than intentional.

As correctly stated in the majority opinion, Duplechin admitted that he ran into the plaintiff in an attempt to prevent a double play. In essence the defendant testified that if the plaintiff did not get out of the way he would run into him in order to prevent the double play. The plaintiff did not get out of the way and Duplechin did run into him. As a result plaintiff received rather severe facial injuries, principally because of the difference in size between the two players; Duplechin was five feet, eleven inches tall and weighed two hundred ten pounds, while the plaintiff was five feet, seven inches tall and weighed one hundred forty pounds.

The majority opinion sets forth the distinction between an intentional tort and one resulting from negligence, as follows: “. . . the mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent.”

In the present case the danger of Duple-chin colliding with the plaintiff and causing him injury was more than a foreseeable risk which a reasonable man would avoid. The collision and resulting injury were a substantial certainty, particularly in view of the fact that Duplechin was larger than the plaintiff, was running in an upright position at full speed directly at the plaintiff, and knew he would run over the plaintiff if the latter did not get out of his way. Even though Duplechin may not have intended to injure the plaintiff, he intended an unpermitted contact with the plaintiff, and this constitutes an intentional tort, for which the Allstate policy excludes coverage.

      . The Allstate policy, exhibit D-l, provides an exclusion of coverage in the following language :
      “This policy does not apply:
      *******
      “f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.” (TR. 29)

      . William L. Prosser, Law of Torts, § 9 (4th ed. 1971).

      . See Footnote 1 of the majority opinion.