author: ANSTEAD, Judge.

text:
    Darryl FARMER, Appellant, v. STATE of Florida, Appellee.
    No. 78-149.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Richard S. Rhodes, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from the trial court’s denial of appellant’s motion for post-conviction relief which sought a belated review by the trial judge of the sufficiency of the evidence on the grounds that his privately retained counsel had failed to file a motion for new trial following appellant’s conviction for murder in the first degree. We affirm.

Following appellant’s conviction, he appealed to this court challenging the sufficiency of the evidence. This court examined the evidence and found it sufficient to sustain the conviction. However, appellant is claiming he lost the “unique” right to have the same judge who presided over his trial review the sufficiency of the evidence. That same judge had denied motions for directed verdict during the course of the trial. However, following the completion of appellate proceedings, the original trial judge filed a “memorandum” in the trial court record which implied that he felt the jury’s verdict was harsh. It is this memorandum which apparently gave rise to appellant’s subsequent motions for post-conviction relief. As to the failure to file a motion for new trial the record shows that appellant switched from one private attorney to another immediately after his trial. The initial attorney claimed he had been discharged by appellant and testified that he had advised the appellant and his family of the necessity for filing a motion for new trial. The succeeding attorney claimed that he had not yet been retained when the time expired for the filing of the motion.

In this appeal the appellant claims that he is “not really” claiming incompetency of counsel but rather deprivation of his constitutional right to counsel. In State v. Barber, 301 So.2d 7 (Fla.1974), the Supreme Court of Florida treated a similar claim involving the failure to file a motion for new trial as an issue involving the competency of counsel. Barber involved appointed counsel. If we accept the distinction offered by appellant, then if counsel was not incompetent, and thus not responsible for the failure to file the motion for new trial, the only other explanation is that appellant himself was responsible and that he deprived himself of counsel. We thus see no other recourse but to treat appellant’s claim as involving the competency of privately retained counsel.

In Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967) the Florida Supreme Court stated that inadequacy of privately retained counsel was not a valid basis for post-conviction relief. Cappetta and other Florida decisions were cited by the federal court in U.S. ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976) for the same proposition:

In an uninterrupted line of cases Florida has steadfastly refused to recognize incompetency of privately retained counsel as a valid basis for post-conviction relief. The rule appears well entrenched in Florida’s jurisprudence, and we see no indication that a Florida appellate court would be inclined to deviate from this well worn path.

Under these holdings, the appellant is not entitled to relief.

However, the appellant contends the Florida decisions are incorrect, and that by not having a motion for new trial filed in his behalf, his constitutional rights to counsel and due process of law have been violated. In Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974) it was held that in order to establish a claim of incompetency of private counsel, the defendant must prove that his trial was fundamentally unfair or that counsel’s incompetency was so apparent that a reasonably attentive state official should have interceded to take corrective action. Even under this federal standard, we would be forced to affirm the trial court’s decision since appellant’s allegations and proof fall far short of the required showing.

Accordingly, the order of the trial court is affirmed.

LETTS, J., and JOHNSON, TOM, Associate Judge, concur.

      . There is proof in the record that appellant was advised of the necessity for filing the motion yet he discharged trial counsel and did not retain new counsel until it was too late.


source: Caselaw Access Project

author: DOWNEY, Chief Judge.

license: Public Domain

text:
    Lawrence F. BROWN and Delores M. Brown, Petitioners, v. FINANCIAL INDEMNITY COMPANY, Respondent.
    No. 78-2179.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Samuel T. Stevenson of Law Offices of George Ritchie, Cocoa, for petitioners.
    R. Lee Bennett of Lowndes, Drosdick & Doster, Orlando, for respondent.
   DOWNEY, Chief Judge.

Petitioners seek certiorari review of an order of the Circuit Court reversing an order of the County Court.

Respondent sued petitioners in the County Court of Brevard County to recover on an indemnification agreement. The County Court granted a judgment on the pleadings in favor of petitioners. On appeal before a two judge Circuit Court panel the order under review was reversed and, in addition, the appellants/respondents were granted attorney’s fees for the appeal if respondent prevailed on the merits in the trial court. It is the latter aspect of the Circuit Court order which petitioners claim is a departure from the essential requirements of law.

Petitioners contend that the contract of indemnity relied upon by the respondents does not specifically provide for attorney’s fees on appeal. Therefore, since the contract in question predates Section 59.46, Florida Statutes (1977), no allowance can be made for appellate attorney’s fees incurred by the indemnitee. Petitioners rely upon Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla.1974), and Goodfriend v. Druck, 309 So.2d 236 (Fla. 4th DCA 1975), as well as Lake Killarney Apartments, Inc. v. Estate of Thompson, 283 So.2d 102 (Fla.1973), and Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975).

Respondent, on the other hand, contends that those cases are not applicable here because they were involved with either a statute, or a promissory note providing for attorney’s fees, none of which specifically provided for attorney’s fees on appeal. But in this case we are dealing with an agreement of indemnity, and the recovery of an attorney’s fee is generally considered as part of the damages covered by a contract of this nature. In Thomas Awning & Tent Co., Inc. v. Toby’s Twelfth Cafeteria, Inc., 204 So.2d 756 (Fla. 3rd DCA 1967), the court held attorney’s fees in both the trial court and on appeal were recoverable.

Although the court did not specify attorney’s fees on appeal in Fontainbleau Hotel Corporation v. Postol, 142 So.2d 299 (Fla. 3rd DCA 1962), the language used is consistent with the holding in the Thomas Awning case. As the court in both Fonta-inbleau and Thomas Awning pointed out:

“ ‘As a general rule an indemnitee is entitled to recover, as a part of the damages, reasonable attorney’s fees, and reasonable and proper legal costs and expenses, which he is compelled to pay as a result of suits by or against him in reference to the matter against which he is indemnified * * *.’ ” 142 So.2d at 300; 204 So.2d at 757.

We perceive the distinction between these cases and those relied upon by petitioners to be that when suing on an indemnity contract all attorney’s fees incurred are a part of the indemnitee’s damages.

Accordingly, we find no departure from the essential requirements of law and the petition for writ of certiorari is denied.

CROSS and LETTS, JJ., concur.

      . Section 59.46, Florida Statutes (1977), provides that a statute or contract providing for payment of attorney’s fees shall be construed to include appellate attorney’s fees.


author: RIVKIND, LEONARD, Associate Judge.

text:
    ROBSTONE COMPANY, a Florida Corporation, Appellant, v. SOUTHERN CRANE RENTALS, INC., a Florida Corporation, and the Travelers Insurance Company, Appellees.
    No. 77-1011.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Donald M. Coon, Miami, for appellant.
    Janis M. Halker formerly of Gurney, Gurney & Handley, P. A., Orlando, for appel-lees.
   RIVKIND, LEONARD, Associate Judge.

The counter-plaintiff appeals from a summary final judgment for the counter-defendant. The main action, filed by the counter-defendant, has been resolved. We reverse and remand.

Counter-defendant leased a crane to counter-plaintiff pursuant to the terms of a written lease. The crane collapsed while being used in connection with a construction project undertaken by the lessee resulting in alleged injury and damage. The counterclaim sought damages for the alleged negligence of the lessor in furnishing a defective crane. The motion for summary judgment was based upon two grounds, (1) that there was no liability by virtue of certain provisions in the lease, and (2) that the collapse of the crane was caused solely by the negligence of the lessee. Affidavits in opposition to the motion for summary judgment were submitted concerning the issue of negligence. The provisions of the lease relied upon are as follows:

6. Repairs: Lessee shall during the term of this Lease, at its own expense, keep and maintain the equipment in a state of good condition and repair, reasonable wear and tear excepted. This covenant to repair applies regardless of the cause of the damage, all risk being that of the Lessee.
7. Disclaimer of Warranty: Lessee has prior to signing this Lease inspected the equipment and has accepted it “AS IS” and in its present condition as the same exists on the date of this Lease. Any and all implied or express warranties including but not limited to the implied warranty of fitness for a particular purpose and implied warranty of merchantability are excluded. The Lessee acknowledges that Disclaimer of Warranty as contained in this paragraph is understood, acknowledged, and that the language excluding any express or implied warranty is clear, plain, and conspicuous in accordance with Chapter 671 of the Florida Statutes and the Uniform Commercial Code in effect in the State of Florida. No oral or written representation made by any agent, servant, or employee of Lessor with reference to the equipment, intended use of the equipment, suitability of the equipment, express or implied warranty or any other provision of this Lease shall be binding upon Lessor unless such representation is made in writing by its President.
8. Delivery and Return of Equipment: Cost of transporting the equipment from Lessor’s place of business to the place designated for delivery by the Lessee shall be the expense of the Lessee. Upon the expiration or termination of this Lease, Lessee shall return the leased equipment to Lessor at its place of business. complete and in good order, repair and condition, reasonable wear and tear excepted. In the event that any of the equipment is not so returned, Lessor may cause such equipment to be put in good order, repair and condition, by repair, maintenance, purchase or otherwise and Lessee shall bear such expense.
♦ ‡ sfc * ‡ jf;
10. Indemnity: Lessee agrees to indemnify and save Lessor harmless from any and all claims, demands, actions, causes of action, expenses or any and all other liabilities of whatsoever kind or nature arising out of or connected with the use, operation, possession of or renting of the equipment by the Lessee.

We do not believe that any of these provisions of the lease exculpate the lessor from liability for its own negligence. University Plaza Shopping Center v. Stewart, 272 So.2d 507 (Fla.1973); Ivey Plants, Inc. v. F.M.C. Corp., 282 So.2d 205 (Fla. 4th DCA 1973). The issue of negligence in the case sub judice cannot, on the record before this court, be disposed of by summary judgment. The burden is upon movant to show that there is no genuine issue of material fact left in the case. The movant failed to meet the burden of showing that the counter-plaintiff could prove no set of facts in support of its claim which would entitle it to relief. Summary judgments are rarely appropriate in tort actions.

REVERSED AND REMANDED.

DOWNEY, C. J„ and ANSTEAD, J., concur.


author: ERVIN, Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. PROFESSIONAL FIREFIGHTERS OF FLORIDA, INC., James B. Jackson, Dominick F. Barbera, and Gary Rainey, Respondents.
    No. MM-96.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1979.
    George L. Waas and Charles T. Collett, Tallahassee, for petitioner.
    Mallory E. Horne, Edward S. Jaffry and Judson M. Chapman of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, and Thomas C. Oldham, Tallahassee, for respondents.
   ERVIN, Judge.

The Department of Health and Rehabilitative Services petitions for review of intermediate agency action in the form of an order of a hearing officer of the Division of Administrative Hearings, Department of Administration, denying the Department’s motion to dismiss respondents’ rule-challenge petition pursuant to § 120.56, Fla. Stat. (1977). Respondents contend that the Department has adopted an illicit rule on the ground that it is an invalid exercise of delegated legislative authority. The Department answers that respondents, having participated in a § 120.54(3) hearing on the proposed rule chapter, and later having requested a draw-out under § 120.54(16), which HRS granted, but from which respondents later withdrew, are now precluded from collaterally attacking the rule-making proceedings under § 120.56, and rely upon State Dept. of Health, etc. v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978).

We agree with respondents that the facts in Barr are not analogous and therefore not controlling. In Barr, certain parties participated in a § 120.565 proceeding following which the agency issued a declaratory statement. Later, three of the parties who were within the class purportedly represented before the hearing officer petitioned the court for direct review of the declaratory statement, but then voluntarily dismissed the petition in order to initiate a collateral attack in § 120.56 proceedings. We granted the motion to dismiss the rule-challenge proceedings on the ground that the APA does not permit hearing officers “collateral review power over final agency action taken after regular proceedings under other provisions of the Act.’’ Id. at 505.

The relief initially sought in Barr by respondents — a declaratory statement — is altogether different from the rule-making proceedings respondents participated in here. “A declaratory statement is a means for determining the rights of parties when a controversy, or when doubt concerning the applicability of any statutory provision, rule or order has arisen before any wrong has actually been committed.” Fla.Admin. Code Rule 28-4.05. A declaratory statement adjudicates rights, cf., School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); it is “final agency action” and “reviewable in the same way as orders entered in Section 120.57 proceedings, . .” State Dept. of Health, etc. v. Barr, supra, at 505. A rule-making proceeding, authorized by § 120.54(3), on the other hand, allows “affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform [the agency] of their contentions.” As we stated in Balino v. Dept. of Health and Rehabilitative, etc., 362 So.2d 21, 24 (Fla. 1st DCA 1978), the purpose of a rule-making hearing under § 120.54(3) is two-fold:

(1) To allow the agency to inform itself of matters bearing on the proposed rules or modifications thereof, and
(2) To allow the public, and specifically individuals and groups having particular interests and/or information, to participate in the rule-making process. The hearing is of a quasi-legislative, information-gathering type, which in theory at least, does not adjudicate the rights of any particular individual, (e.s.) (footnotes omitted.)

The Balino opinion continued that the hearing afforded by § 120.54(3) is not an adversary proceeding and that the agency has no right to protect itself from evidence or argument which may be unfavorable. Id.

We conclude that respondents’ participation in § 120.54(3) rule-making has no res judicata effect on their right to collaterally attack the rule by a § 120.56 petition. Nor does the fact that respondents filed a request for a draw-out, permitted by § 120.-54(16) — later withdrawn before the draw-out proceedings were conducted — preclude them now from the relief they seek. Section 120.54(16) permits the agency, if it determines a rule-making hearing is not adequate to protect the substantial interests of a person, to suspend rule-making and convene a separate proceeding under the provisions of § 120.57. No such hearing was held, however, and the agency’s permission of a party’s request for same is clearly not final agency action to which principles of res judicata or collateral estoppel apply.

The remaining points urged by the Department for reversal are without merit. The petition for review of non-final administrative action is DENIED, and the order denying the motion to dismiss AFFIRMED.

MILLS, Acting C. J. and BOOTH, J., concur.


author: DIXON, Justice. TATE, Justice, TATE, Justice.

text:
    STATE of Louisiana v. Clifford McGRAW and Valerie Manchester.
    No. 61172.
    Supreme Court of Louisiana.
    June 19, 1978.
    On Rehearing Jan. 29, 1979.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for Clifford McGraw, defendant-appellant.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, Kim Allison Gandy, Student Practitioner, Loyola Law School Clinic for Valerie Manchester, defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendants, Clifford McGraw and Ms. Valerie Manchester, were jointly indicted and tried for the first degree murder, La.R.S. 14:30 (1973) of Gregory Kress. The defendant McGraw was convicted as charged and sentenced to death. Ms. Manchester was convicted of second degree murder, La.R.S. 14:30.1, and sentenced to life imprisonment.

The defendants, who were and are each represented by separate counsel, filed numerous assignments of error (McGraw, twenty-nine; Manchester, sixteen). Ultimately, we conclude that Ms. Manchester’s conviction must be reversed due to the introduction on rebuttal of an inculpatory statement by her without first establishing that it was freely and voluntarily given. We find no reversible error as to McGraw and affirm his conviction.

Context Facts

Under the State’s evidence, the circumstances of the crime, which resulted in the brutal murder of Kress, were:

Kress and his bride, a Pennsylvania couple, were in New Orleans on their honeymoon. Late in thfe evening of February 24, 1975, they met the codefendants in a French Quarter night spot. They had several drinks together, and they all ultimately wound up in the apartment of the defendant McGraw, ostensibly to have a drink before going to breakfast.

When they arrived there, McGraw asked Kress into another room and closed the door. Mrs. Kress heard loud thuds and noises coming from the other room. When she attempted to investigate, Ms. Manchester attempted to prevent her from entering the room by hitting her. McGraw came out of the room, struggled with and struck her, and then with Ms. Manchester, took Mrs. Kress into the street. Her screams brought police to the area.

The victim, Kress, was subsequently found dead. He had been beaten and shot. Mrs. Kress was also severely injured (broken jaw and chin) by the beating. The husband had been robbed of his wallet and ring. Mrs. Kress’ rings were also taken.

Reversible Error as to Valerie Manchester

In Manchester’s Assignment of Error No. 10 she averred that the trial court erred in allowing the State to introduce rebuttal testimony of an inculpatory statement she made to police officers without establishing first that the statement was freely and voluntarily given. For the reasons here stated, we find Manchester’s contention to have merit warranting reversal.

At trial Manchester took the stand in her own defense and stated, in essence, that she was unaware that McGraw intended to rob the Kresses or murder Gregory Kress, and that she did not injure Janet Kress. The prosecutor cross-examined her about a statement she gave Detective George Heath while in Central Lockup the morning of February 25,1975. She acknowledged that Detective Heath and Sergeant Eugene Knight came to speak with her but denied making any statement. To rebut Manchester’s testimony, Detective Heath was recalled and testified, over defendant’s objection that a sufficient predicate had not been laid, that Manchester was' given her Miranda rights and gave a statement: “She said first time she set eyes on Janet and Gregory Kress she intended to rob them, they looked like a good mark . . She told me that she cut Janet with carpet knife.”

The admissibility of the inculpatory statement objected to at trial had previously been ruled upon at a hearing on defendants’ motions to suppress. At the hearing it was ascertained that certain statements were obtained from Manchester and McGraw after the defendants had been to Magistrate Court where an attorney had been appointed to represent them; hence the judge ruled that “[a]ny statement after Magistrate Court and a lawyer not sent for are inadmissible.” Other statements made by defendants prior to their appearance in Magistrate Court were ruled admissible. The statement testified to by the State witness on rebuttal was the very statement by Manchester that was held inadmissible at the motion to suppress hearing.

It it well settled that the rules governing the admissibility of confessions are also applicable to admissions involving the existence of criminal intent or inculpa-tory fact. See, e. g., State v. Fruge, 251 La. 283, 204 So.2d 287 (1967), cert. denied, 391 U.S. 912, 88 S.Ct. 1806, 20 L.Ed.2d 652; State v. Gregoire, 249 La. 890, 192 So.2d 114 (1966), appeal dismissed, 389 U.S. 154, 88 S.Ct. 339, 19 L.Ed.2d 354; State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Maney, 242 La. 223, 135 So.2d 473 (1961); State v. Domino, 234 La. 950, 102 So.2d 227 (1958). Before a confession or inculpatory statement may be introduced into evidence, the State must prove affirmatively, and beyond a reasonable doubt, that the statement was freely and voluntarily made, C.Cr.P. 703(C); R.S. 15:451; State v. Scott, 355 So.2d 231 (La.1978); State v. Henry, 352 So.2d 643 (La.1977); State v. Glover, 343 So.2d 118 (La.1977), and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. R.S. 15:451; State v. Thomason, 353 So.2d 235 (1977); State v. Trudell, 350 So.2d 658 (1977). Furthermore, the State’s burden is a heavy one which must be fully discharged. State v. Rheams, 352 So.2d 615 (1977); State v. Taylor, 336 So.2d 855 (1976).

Our statutes make clear that when an accused takes the witness stand he is subject to all the rules applying to other witnesses, R.S. 15:462, including those which allow a witness’ testimony and credibility to be impeached by proof of a prior inconsistent statement. R.S. 15:486, 493. Nevertheless, when the impeaching statement is in the form of a confession or admission the State must still satisfy the normal rules regulating the admissibility of confessions just as if the statements had been offered in the State’s case in chief. Therefore, the State, in offering an inculpa-tory statement for impeachment purposes, must still establish that the statement was given freely and voluntarily before it can be introduced. State v. Palmer, 232 La. 468, 94 So.2d 439 (1957); State v. Clark, 228 La. 899, 84 So.2d 452 (1955); State v. Ward, 187 La. 585, 175 So. 69 (1937); State v. Hayes, 162 La. 310, 110 So. 486 (1926).

In State v. Palmer, supra, under facts similar to those in the instant case, reversible error was found where the State offered, over defense objection, an inculpa-tory statement made by defendant for the purposes of impeachment on rebuttal without a foundation having been laid to show the statement was freely and voluntarily given. We see no reason for withdrawing from this position, which prevents the State from circumventing the requirement of showing the voluntary nature of a confession or admission by producing the statement on rebuttal rather than during the case in chief.

The State contends that even though Manchester’s inculpatory statement had previously been ruled inadmissible by the trial judge, that ruling was not based upon a finding that the statement was involuntary under R.S. 15:451, but rather on the absence of defendant’s appointed counsel when the statement was made. Therefore it argues that the statement was admissible against Manchester as impeachment testimony, relying upon the authority of the United States Supreme Court’s decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Harris held that a statement made by the defendant to the police, although inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to establish the prosecution’s case in chief, could properly be used to impeach his credibility as a witness. Harris, however, is not dispositive, as the State contends, for it does not have the effect of allowing the prosecution to dispense with the requirements for admissibility established under State law. As the high court stated:

“Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” 401 U.S. at 224, 91 S.Ct. at 645, 28 L.Ed.2d at 4. (Emphasis added).

The State further alleges that “voluminous testimony” at the hearing on the motion to suppress by the arresting and investigating officers established that defendant was fully warned of her Miranda rights and that there were no threats, inducements, abuse or coercion that would render the statement involuntary. This, along with Manchester’s failure to offer evidence to rebut this showing, the State contends, is sufficient to establish that the statement was not obtained in violation of R.S. 15:451, 452.

We find, however, that the State’s characterization of the testimony at the motion to suppress hearing is inaccurate. Although Detective Heath testified that neither defendant was subjected to physical abuse in his presence, this testimony was in regard to statements made by the defendants upon their arrival at the detective bureau on February 24. The statement introduced by the State on rebuttal was made by Manchester the morning of the 25th when Detective Heath and Sergeant Knight came to Central Lockup to interview her. There was no testimony elicited at the hearing from which the voluntariness of defendant’s statement could be ascertained.

Accordingly, the State failed to satisfy its obligation to prove beyond a reasonable doubt that Manchester’s inculpatory statement was free and voluntary, a burden which still must be met when an inculpato-ry statement is introduced for impeachment purposes. Manchester’s conviction, therefore, must be reversed.

Assignments of Error Nos. 23, 24 and 27 (McGraw)

The most serious question is raised by these assignments. Defendant contends the trial court erred in denying his motions for severance and mistrial made in certain instances during the course of the trial. These motions were made on the basis that the defenses, as they developed at trial, were antagonistic and defendant was forced to defend not only against the State, but against his co-defendant, Ms. Manchester.

It is clear, from a long line of authority, that persons jointly indicted are not entitled to a severance of trial as a matter of right. Rather, the grant or denial of a motion for severance lies within the discretion of the trial judge whose ruling will not be interfered with unless exercised arbitrarily or to the prejudice of the accused.

Neither C.Cr.P. 704(2) (“Jointly indicted defendants shall be tried jointly unless . The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.”) nor its predecessor, Article 316 of the 1928 Code of Criminal Procedure (“Persons jointly indicted shall be jointly tried . . . unless the court, upon motion of defendant, shall, after hearing contradictorily with the district attorney, order a severance.”), provided the trial judge with a standard with which to exercise his authority. Hence, the cases in Louisiana developed the “antagonistic defenses” test which, when satisfied, would direct the trial judge to grant a severance. Comment (c) to C.Cr.P. 704.

The first reported case to reverse a conviction on the basis that the trial court erred in denying a severance when the defendants’ defenses were antagonistic was State v. Desroche, 47 La.Ann. 651, 17 So. 209 (1895). In Desroche each defendant had made confessions incriminating the other which were used at trial. The court stated:

“To try both together was, in effect, to try each on the confession of the other; and this, of course, would be to disregard the obvious principle that no man can be affected in his rights of person or property by the statements of another out of his presence, and not assented to by him.” 47 La.Ann. at 654, 17 So. at 210.

The court cited, in support of the above proposition, the decisions in State v. Johnson, 35 La.Ann. 842 (1883); State v. Jackson, 29 La.Ann. 354 (1877), and State v. Havelin, 6 La.Ann. 167 (1851). These cases involved the issue of whether the declarations and confessions of a co-defendant which implicates the other may be offered in proof against the latter; the question of the propriety of severance where antagonistic defenses are present was not at issue.

Often in these early cases where confessions of a co-accused which affected the other defendant were introduced into evidence (and no severance had been requested), it was determined that no prejudice was caused when the trial judge informed the jury that the confession or admission was to be considered only against the party who made it. State v. Sims, 106 La. 453, 31 So. 71 (1901); State v. Robinson, 52 La.Ann. 616, 27 So. 124 (1896); State v. Donelon, 45 La.Ann. 744, 12 So. 922 (1893); State v. Harris, 27 La.Ann. 572 (1875); State v. Havelin, supra; State v. Hogan, 3 La.Ann. 714 (1848). Where the trial judge failed to give the requisite jury instruction reversible error was found. State v. Johnson, 47 La.Ann. 1225, 17 So. 789 (1895); State v. Weasel, 30 La.Ann. 919 (1878); State v. Monie, 26 La.Ann. 513 (1874).

Although the trial judge instructed the jury in Desroche to disregard the confession except as against the confessor, the court found that the jury charge did not correct the error made in denying the severance. Referring to State v. Johnson, supra, State v. Jackson, supra, and State v. Havelin, supra, as “authorities in favor of the severance” which the court considered supplemented by Wharton on Criminal Law and Bishop on Criminal Procedure, 1 Whart. Cr.Law (7th ed.) § 733; 1 Bish.Cr.Proc. § 1019, the court held that “when the defenses are antagonistic and confessions are to be used, the severance should be granted.” 47 La.Ann. at 656, 17 So. at 211.

Cases prior to Desroche had considered the question of severance where confessions of one or both codefendants implicated the other and the defenses were allegedly antagonistic. No error was found in denial of the severance because either the prosecutor disclosed the intention not to use the confessions, State v. Lee, 46 La.Ann. 623, 15 So. 159 (1894); State v. Gournet, 43 La.Ann. 197, 9 So. 436 (1891); State v. Ducote, 43 La.Ann. 185, 8 So. 439 (1891), or the defenses were not shown to be antagonistic, State v. Taylor, 45 La.Ann. 605, 12 So. 927 (1893).

In cases following Desroche confessions of codefendants were often involved, but the cases were not always so limited. Often the denial of a severance was held proper where the defenses were determined to be nonantagonistic. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Kemp, 251 La. 592, 205 So.2d 411 (1967); State v. Progue, 243 La. 337, 144 So.2d 352 (1962); State v. Labat, 226 La. 201, 75 So.2d 333 (1954); State v. Cook, 215 La. 163, 39 So.2d 898 (1949); State v. Taylor, 173 La. 1010, 139 So. 463 (1932); State v. Lamotte, 168 La. 837, 123 So. 591 (1929); State v. Birbiglia, 149 La. 4, 88 So. 533 (1921); State v. Simon, 115 La. 732, 39 So. 971 (1905). And where the motion to sever merely alleged antagonism in general terms without setting forth facts to enable the trial judge to ascertain whether there was antagonism necessitating a severance, or where no proof of antagonism or conflict was shown, the severance denial was deemed proper. State v. Hunter, 340 So.2d 226 (La.1976); State v. Ross, 263 La. 271, 268 So.2d 222 (1972); State v. Bonner, 252 La. 200, 210 So.2d 319 (1968); State v. Progue, supra; State v. Livsey, 190 La. 474, 182 So. 576 (1938); State v. Birbiglia, supra; State v. Simon, supra.

Few cases can be found where severance on the basis of antagonistic defenses was required.

Merit was found to a defendant’s allegation that antagonistic defenses should warrant a severance of trials of co-accuseds in State v. Bessa, 115 La. 259, 38 So. 985 (1905), and more recently in State v. Thibodeaux, 315 So.2d 769 (La.1975). In Bessa the convictions of two black men were reversed because the district attorney made repeated remarks appealing to racial prejudice. The court did not discuss whether the denial of a motion to sever constituted reversible error; however, in remanding the case for a new trial, the court ordered the defendants to be tried separately, finding the defenses to be clearly antagonistic since there was no question that one or the other of the accused committed the crime, the sole question being which one of the defendants was responsible. The antagonistic defenses question reached this court in Thibodeaux on a writ of certiorari to a trial judge’s denial of a pretrial motion to sever. The evidence adduced at a hearing on the motion to sever disclosed that one defendant intended to place sole blame for the offense on his co-defendant. This, we determined, clearly showed the defenses to be antagonistic. Accordingly, we reversed the trial judge’s ruling, holding that justice required a severance.

The case before us arises under a different posture from that in Thibodeaux. While Thibodeaux reached us still in the pretrial stages, in the instant case the trial has been concluded and with it we have a complete record of evidence and testimony. Although McGraw did not file a pretrial motion to sever, he is not precluded from raising the issue since the motion for severance or mistrial may be made during the trial at the time the prejudice to the mover becomes manifest. State v. Ross, supra.

When Ms. Manchester took the stand and cast sole responsibility upon McGraw, and her attorney emphasized McGraw’s guilt in closing argument, MeGraw was forced to “defend not only against the state, but against his co-defendant.” State v. Thibodeaux, 315 So.2d at 771. The defenses, therefore, were antagonistic. Nevertheless, reversal of a conviction for failure to sever where antagonism is shown is not always mandated unless prejudice can be shown. C.Cr.P. 921. As the comments to C.Cr.P. 704 indicate, the “antagonistic defenses” test was not codified as a standard to be used by the court in granting a severance when, in his opinion, after a contradictory hearing, “justice requires it.” According to the comments, the idea from the federal rules, that a severance may be granted when a joint trial may result in “prejudice,” has been incorporated into the standard of “justice” in art. 704. Comment (d) to C.Cr.P. 704.

From a reading of the record it becomes apparent that there was substantial competent evidence of McGraw’s guilt. McGraw’s conviction should have been a certainty, independent of Ms. Manchester’s testimony and her counsel’s closing argument. Therefore, we conclude that McGraw’s substantial rights were not impaired by the denial of his motion to sever and mistrial and that he was not denied a fair trial. After trial has been concluded, an abuse of discretion will not be found unless the defendant would probably not have been convicted had he been allowed a separate trial. In the instant case, however, the evidence amply supports the verdict apart from Ms. Manchester’s testimony or closing argument of her attorney. Accordingly, we hold that the denial of McGraw’s motion to sever did not constitute reversible error.

Assignment of Error No. 7 (McGraw)

Defendant contends that the trial court erred in denying his motion to have the State produce a list in its possession containing the voting records of the prospective jurors in prior criminal trials. The motion, filed by defendant Manchester and joined in by defendant McGraw, alleged the State had possession of such a list, that they were indigent and neither had the funds nor means to determine the jury panel’s prior voting record, and that they had sufficient cause to believe the State intended to use the information to obtain partial jurors who would render a guilty verdict. After the trial judge ascertained that the State possessed the requested information, the motion was denied. Defendant makes no allegation, nor does the record reflect, that the State used the list during the trial in exercising jury challenges.

In State v. Singleton, 352 So.2d 191 (La.1977), we reviewed the jurisprudence on the question of what showing must be made by a defendant to support a claim that denial of access to voting lists of prospective jurors constitutes reversible error:

“This issue has recently been before us several times. In the case of State v. Wright, 344 So.2d 1014 (La.1977), the defendant moved before jury selection for a copy of the district attorney’s list which indicated how prospective jurors had voted in prior jury trials and the type of case heard by each of the prospective jurors. We assumed without deciding that the lists were the work product of the district attorney’s office and held that to discover a work product a litigant must demonstrate that denial of such production would unduly prejudice the preparation of his case or cause him hardship or injustice. We stated that:
‘In order to make such a showing . he would have been required to demonstrate that he could not practicably obtain information from other sources, and that the state intended to use it in selecting the jury. Had defendant done so, he should have been given the information before voir dire or else allowed to question the prospective jurors on the subject.’ 344 So.2d at 1017.
Because defendant made no such showing, however, no reversible error was found in the trial judge’s refusal to demand production of the lists.
In State v. Rey, 351 So.2d 489, handed down October 10, 1977, the Court again found no merit in defendant’s complaint that he had not been given the lists because:
‘In the present case, the record indicates that the prosecutor assembled his information on the voting records of prospective jurors from the records in the office of the clerk of court and that the same records are available to any defense attorney. The defendant has failed to demonstrate the required prejudicial effect of the denial of access.’
Moreover, in State v. Holmes, 347 So.2d 221 (La.1977), this Court found defendant’s request for lists premature because voir dire examination had not been conducted and defendant had not shown that he could not get the information by other means (i. e. by questioning jurors on voir . dire). And in State v. McGhee, La., 350 So.2d 370, handed down September 19, 1977 the Court found error in the trial judge’s refusal to allow counsel to ask prospective jurors on voir dire what the verdict was in previous juries of which they had been a member. The question whether the meritorious assignment standing alone had sufficient merit to warrant reversal wás not reached in light of the fact that the conviction was reversed on two other independent grounds. In the case now before us, we conclude that defendant Singleton has failed to make a showing that he could not gain the information he requested other than by the state’s production of the lists in question. None of the prospective jurors were questioned about their past jury service nor criminal records on voir dire examination. Under these circumstances, we find no reversible error in the refusal of the trial judge to order production of the lists. C.Cr.P. art. 921. . . 352 So.2d at 193-94.

See also State v. Harvey, 358 So.2d 1224, 1978, where we held that no reversible error was shown by the trial court’s denial of defendant’s motion for prospective jurors’ criminal records, an issue analogous to a request for voting records, because the record did not reflect that defendant was denied the right to question the prospective jurors on the subject.

Defendant alleges that a voting list is not a “work product” because the list does not contain thoughts, strategies or mental impressions but rather raw data from which such conclusions might be drawn. Also he contends that under C.Cr.P. 723, the list would not be a “work product” because it was prepared for all criminal cases tried during the month, and not just for this case. But see State v. Rey, 351 So.2d 489 (La.1977). Therefore, he argues, the strict showing required by Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (a “showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice,” id. at 509, 67 S.Ct. at 392, 91 L.Ed. at 461) or by this court in State v. Wright, 344 So.2d 1014 (La.1977), (that she was practicably unable to obtain the information from other sources and the State intended to use the list in selecting the jury) is inapplicable to the case at bar. However, we need not reach this question because, on the record before us, defendant has not shown that the State actually made use of the list during voir dire in selecting the jury. Therefore, there is no indication that the State obtained a nonreciprocal advantage that would be offensive to fundamental fairness, see Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82, 87 and n. 6 (1973), or which would warrant reversal of Manchester’s conviction.

McGraw’s Other Assignments of Error

The remaining assignments of error have no merit.

Nos. 1, 2 and 6: Defendant assigns error to the trial court’s failure to order the State to answer certain questions in his motion for bill of particulars, and its failure to require the State to produce certain statements and evidence in response to his prayer for oyer. Due to the deficiencies in the State’s responses, he contends that the indictment should have been quashed. Defendant was provided with all the information to which he was entitled when this case was tried; therefore, he was adequately informed of the nature and cause of the accusation against him.

Nos. S, 4, 5, 14, 18, 19 and 20: Defendant objects to the denial of his motion to suppress evidence seized from the scene of the crime and photographs and to their introduction at trial. The record discloses probable cause to enter McGraw’s apartment and make a warrantless arrest. C.Cr.P. 213. The evidence was either properly seized incident to a valid arrest, or in plain view, or as the result of a reasonable search.

Nos. 8 and 26: These assignments were neither briefed nor argued and are therefore deemed abandoned. State v. Jones, 340 So.2d 563 (La.1975).

No. 9: In State v. Hoffman, 345 So.2d 1 (La.1977), we held that jury panels in Orleans Parish must be selected indiscriminately and by lot in open court in accordance with C.Cr.P. 784; however, that decision, having prospective effect only, is not applicable to this case.

No. 10: Defendant assigned error to the excusing of sixty prospective jurors for cause merely on the basis that the juror expressed reservation about imposition of the death penalty. A sentence of death cannot be carried out if the jury that recommended it was chosen by excluding prospective jurors for cause simply because they voiced general objections to the death penalty or expressed conscientious scruples against its infliction. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). As the death penalty imposed on defendant cannot be carried out, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the question is moot.

No. 11: Defendant contends the trial court erred in denying his motion for mistrial when it was shown that certain police officers violated the rule of sequestration. C.Cr.P. 764. As there was no showing that the violation worked to materially prejudice the defendant, no mistrial was warranted.

Nos. 25 and 28: There was no error committed by the trial judge in overruling objections to specific portions of the general charge to the jury. Nor was there error in refusing to read defendant’s requested special charges. Requested charges Nos. 6, 9, 11, 12, 15, 16, 17 and 18 were included in the general charge; requested charges Nos. 2, 3, 4, 7, 10, 13 and 14 were either not wholly correct and pertinent in light of the defense offered, or would require qualification, limitation or explanation by the court. See C.Cr.P. 807.

No. 29: The trial judge did not err in overruling the motions for new trial and in arrest of judgment. There clearly was some evidence upon which a verdict of guilty could be based. All other allegations were those previously discussed to which we found no merit.

Motion to Correct Sentence

As defendant correctly urges, the death sentence imposed upon him must be vacated. The mandatory death penalty required by R.S. 14:30, Acts 1973, No. 109, has been declared unconstitutional. Roberts v. Louisiana, supra. Therefore, the case must be remanded for resentencing to the most serious penalty at the time for the next lesser included offense, State v. Jenkins, 340 So.2d 157 (La.1976), that being second degree murder requiring life imprisonment without the benefit of parole, probation or suspension of sentence for a period of twenty years. R.S. 14:30.1, Acts 1973, No. Ill, § I-

For the reasons assigned, the conviction and sentence of Valerie Manchester are reversed. The conviction of Clifford McGraw is affirmed, but the death sentence imposed upon him is annulled and set aside, and the case is remanded for a resentencing to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.

TATE, J., concurs in part and dissents in part and assigns reasons.

TATE, Justice,

dissenting.

I concur in the reversal of the defendant Manchester’s conviction, but I dissent from the affirmance of the defendant McGraw’s.

As does the majority, I conclude from my reading of the record that there is substantial evidence supporting McGraw’s guilt of this brutal crime. Nevertheless, all defendants, guilty and innocent, are entitled to a fair trial. One of the fair-trial rights of the defendant McGraw is to have his own trial severed from that of a co-defendant with' an antagonistic defense to his, by which in effect he must defend not only against the state but also against his co-defendant. La. C.Cr.P. art. 703 (see official revision comment (c); State v. Thibodeaux, 315 So.2d 769 (La.1975).

A substantial violation of this statutory (if not constitutional) right entitles him to a reversal and to a new trial conducted in accordance with law, La.C.Cr.P. art. 921, for the law presumes prejudice when an accused is denied a right designed to protect fair-trial rights of all accuseds.

The circumstances of this trial indicate the prejudice sustained by the accused.

When Miss Manchester took the stand to deny any complicity in the murder (which murder her testimony admitted) her co-defendant McGraw objected to the question and to the testimony, and he moved for a severance and a mistrial as to him. The trial court denied these requests and motions then and throughout Miss Manchester’s testimony when he reurged.

McGraw’s counsel repeated his motion for mistrial and severance during the closing argument of Miss Manchester’s counsel, when the latter repeatedly emphasized his client’s guilt and that the brutal murder was committed solely by McGraw without any anticipation or intention by her to participate in a robbery or crime. (Assignment 27) (Counsel argued, for instance: “McGraw condemned Kress to death, killed him brutally. McGraw condemned Janet Kress to a fate perhaps even worse because he condemned her to a living death. Don’t let Clifford McGraw, at your hands, condemn Valerie Manchester to death or to .” Objection was then made and overruled, as were the motions.)

The issue thus posed by these assignments is whether under these circumstances the trial court was required to grant McGraw’s motion for a severance or a mistrial as to him.

The trial court has large discretion to grant the defendant’s motion for severance, when satisfied that justice so requires. La. C.Cr.P. art. 704. A failure to urge the plea timely may waive it, State v. Fytus, 256 La. 962, 240 So.2d 723 (1970), but the motion for severance or mistrial may be made during the trial at the time the prejudice to the mover becomes manifest. State v. Ross, 263 La. 271, 268 So.2d 222 (1972).

The trial court’s discretion in denying the defendant’s motion for a severance is subject to supreme court review for abuse. State v. Thibodeaux, 315 So.2d 769 (La.1975). The trial court’s ruling is reviewed on the basis of the record or the showing made to the trial court at the time it is urged or re-urged. State v. Progue, 243 La. 337, 144 So.2d 352 (1962).

In State v. Thibodeaux, 315 So.2d 769 (La.1975), this court unanimously held, reconciling conflicting jurisprudence, that a trial court abuses its discretion by failing to grant a severance of the trial of two defendants who have antagonistic defenses.

Thibodeaux concerned two defendants who each sought to put the blame on the other. The present case concerns one defendant attempting to place the entire blame of the crime on her alleged confederate. In my opinion, the co-defendant’s defense is no less antagonistic to the prejudiced party than in Thibodeaux and like- . wise mandates separate trials on the basis of such showing.

In Thibodeaux we noted that, in the circumstance of antagonistic defenses, “a defendant must defend not only against the state, but also against his co-defendant” [must “stand trial before two accusers, the state” and his co-defendant]. “In such an instance, justice would require a severance.” 315 So.2d 771.

Accordingly, the denial of severance on McGraw’s motion prejudicially denied him a fair trial, and his conviction should be reversed.

I respectfully dissent.

On Rehearing

TATE, Justice.

On original hearing, we reversed the defendant Manchester’s conviction. Applying statutory provisions and well-settled jurisprudence, we held that, in offering the defendant’s inculpatory statement for impeachment purposes, the state had (over objection) failed to establish that the statement was given freely and voluntarily, a required predicate before the confession can be introduced for jury consideration.

The state applied for rehearing. We granted its application, primarily to consider its suggestion that, before reversing, the defendant Manchester’s case should be remanded to the district court for a determination of whether the confession was in fact voluntary. This has been done in other instances when an inadequate predicate for a confession or inculpatory statement had been established in the case under review. See State v. Scott, 355 So.2d 231 (La.1978) and State v. Hills, 354 So.2d 186 (La.1978).

We are unable to do so here, because the present trial error deprived the defendant of her right to have the trial jury evaluate the weight and credibility of the testimony concerning her inculpatory statements, in the light of the circumstance under which they were obtained. (Here, in fact, the inculpatory statement had been suppressed in pre-trial proceedings as inadmissible, because taken in violation of the accused’s Miranda rights).

Scott and Hills, the cited decisions, concerned instances where, with regard to 5the non-jury hearing before the judge, the reviewing court felt that the admissibility of the confession had not been sufficiently established, due to ambiguities in. the evidence. In such an instance, where the hearing on remand before the judge (the sole trier as to admissibility) will establish that the confession was indeed admissible, the defendant’s conviction by the jury based upon such confession was not reversible: The defendant was not prejudiced by the initial determination by the judge in the non-jury hearing that the confession was admissible, even though the initial determination was based upon what the reviewing court felt to be be an insufficient basis.

In the present instance, however, the defendant was deprived of her statutory right to have the jury determine the weight or truth of the confession, as is required by law.

The predicate of voluntariness before the judge (alone) establishes only the admissibility of the confession for introduction into evidence before the jury. However, the state is further required, before introducing the confession at the trial, to establish the predicate of voluntariness before the jury in order to enable the jury, as trier of fact, to determine what weight to give to the confession or inculpatory statement. La.R.S. 15:451; State v. Lovett, 354 So.2d 1139 (La.1977); Pugh, Louisiana Evidence Law 279-89 (1974). Cf. La.C.Cr.P. art. 703(B) (1975).

“Only such circumstances surrounding the making of the confession as are relevant to the issue of voluntariness should be considered by the judge in this [initial non-jury admissibility] hearing. All other questions, including whether or not the confession was in fact made, must be left entirely to the jury.” Pugh, Louisiana Evidence Law 279 at 287 (1974).

Thus, on a remand the state might indeed establish the required predicate of voluntar-iness for admissibility of the confession. Nevertheless, the remand would not cure the prejudice at the trial caused here, where the defendant Manchester was deprived of her right to have the entire circumstances surrounding the confession proven by the state prior to its introduction of the confession, as required by our statutes and jurisprudence. The purpose of this requirement is to enable the trial jury, in the light of these circumstances, to determine what weight, if any, should be given to the incul-patory statements or confession.

The state finally urges that the error was harmless.

The defendant Manchester took the stand to deny that she had any prior knowledge that her male companion intended to rob or kill the young couple when he invited them to his apartment. Over the defendant’s objection that no predicate had been laid for this impeaching testimony, a police officer was permitted to testify that she had confessed that she and her companion had intended to rob the couple, and that she herself had cut the woman victim with a knife. (As we correctly held on original hearing, the trial court erred in overruling this objection and in not requiring the state to prove the predicate required by law before it introduced this inculpatory statement.)

The defendant’s inculpatory statement, if true, corroborated the testimony of the surviving woman victim and indicated to be false the accused’s only defense, the defendant’s own testimony at the trial denying her foreknowledge of her companion’s intended crime or any participation by her in it.

The erroneous admission of the inculpato-ry statement, in substantial violation of the defendant’s statutory right, was obviously prejudicial to the substantial rights of the accused. It cannot be considered as harmless error. Cf. La.C.Cr.P. art. 921.

Decree

Accordingly, we reinstate our original decree, which reversed the defendant Manchester’s conviction, and we remand her case for a new trial in accordance with law.

ORIGINAL DECREE REINSTATED ON REHEARING.

SUMMERS, C. J., and MARCUS, J., dissent.

      .Assignment No. 23 was taken when Valerie Manchester took the stand, admitted the robbery and murder, and denied her complicity in it. Assignment No. 24 relates to defendant’s objections when the State put on a rebuttal witness for the purposes of impeaching Ms. Manchester who testified about an uncoun-selled alleged inculpatory statement by Ms. Manchester. Assignment No. 27 was taken to Ms. Manchester’s counsel’s closing arguments informing the jury that the evidence was overwhelming that the murder was committed solely by defendant without any anticipation or intention by Manchester to participate in any crime.

      . State v. Marchant, 25 U.S. 480, 12 Wheat. 480, 6 L.Ed. 700 (1827); State v. Lee, 46 La.Ann. 623, 15 So. 159 (1894); State v. Cazeau, 8 La.Ann. 109 (1853); State v. Leonard, 6 La.Ann. 420 (1851).

      . See, e. g., State v. Finley, 341 So.2d 1381 (La.1976); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971); State v. Labat, 226 La. 201, 75 So.2d 333 (1954); State v. Cook, 215 La. 163, 39 So.2d 898 (1949); State v. Livsey, 190 La. 474, 182 So. 576 (1938); State v. Cately, 52 La.Ann. 574, 26 So. 1004 (1899); State v. Gournet, 43 La.Ann. 197, 9 So. 436 (1891).

      . That same conclusion would now be mandated after the United States Supreme Court case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton the court found deficient the procedure of the trial judge instructing the jury not to consider the confession of a co-defendant when deciding the guilt or innocence of the other defendant, and held that statements made by one defendant inculpating the other cannot be admitted at trial. To avoid the constitutional problem raised by Bruton, the inculpatory statements of a codefendant are often edited to delete reference to the other defendant. See State v. Jenkins, 340 So.2d 157 (La.1976); State v. Kaufman, 278 So.2d 86 (La.1973).

      . See Annotations in 54 A.L.R.2d 830, 858-60; 131 A.L.R. 917, 922-23; 104 A.L.R. 1519, 1522; 70 A.L.R. 1171, 1184-85 for cases in other jurisdictions applying the antagonistic defenses doctrine.

      . A conflicting line of jurisprudence held that the mere fact that one defendant seeks to escape conviction by throwing the blame upon the other is not sufficient to require a severance. State v. Williams, 250 La. 64, 250 So.2d 787 (1967); State v. Goury, 184 La. 955, 168 So. 113 (1936); State v. Duplechain, 136 La. 389, 67 So. 175 (1915); State v. Johnson, 116 La. 856, 41 So. 117 (1906). But see State v. Thibodeaux, supra, where we held that the better view is that where each defendant attempts to put the blame on the other, an appropriate» occasion for severance is presented.

      . The denial of these motions was the basis of Assignment 23. Similar motions were made when, on rebuttal, the state introduced into evidence an uncounselled alleged inculpatory statement by Miss Manchester. Assignment 24. We need not discuss the lurking Bruton issue (as to McGraw) raised by this alleged statement, by which Miss Manchester was supposed to have stated that “she” intended to rob the Kress couple as soon as she saw them.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.


author: MARCUS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Terry THOMPSON.
    No. 62154.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Dissenting Opinion Nov. 27, 1978.
    Louis Berry, Wanda G. Henton, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., Jimmie C. Peters, Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Terry Thompson was charged by separate grand jury indictments with disturbing the peace by using unnecessarily loud, offensive, or insulting language in violation of La.R.S. 14:103A(2), resisting arrest in violation of La.R.S. 14:108, and simple battery in violation of La.R.S. 14:35. After a single bench trial on all three charges, defendant was found not guilty of disturbing the peace and resisting arrest, but was found guilty of simple battery and sentenced to serve thirty days in jail plus the payment of all costs. Defendant’s application to this court under our supervisory jurisdiction was granted. He asserts three assignments of error. Finding merit in one of the assigned errors, we need not consider the other two.

Defendant contends the trial judge erred in denying his motion for a new trial. He argues that because he was found not guilty of disturbing the peace and resisting arrest, there was no evidence to find him guilty of simple battery. He further argues that the evidence adduced at trial established only that he repelled the unlawful aggression of a deputy sheriff.

In criminal matters, the scope of this court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, § 5(C). It is well settled that an assigned error based upon the denial of a motion for a new trial grounded on a claim of no evidence of the crime charged or an essential element thereof presents a question of law which can be reviewed by this court. State v. Williams, 354 So.2d 152 (La.1977). We consider that the allegations in defendant’s motion for a new trial adequately raise the contention that there was no evidence of the crime charged, simple battery, or an essential element thereof. Hence, this issue is properly before us.

The evidence adduced at trial established the following facts. Defendant’s younger brother had, without defendant’s knowledge, traded defendant’s rifle to Don Elliot for a mini-trail bike. Defendant executed an affidavit accusing Elliot of receiving stolen goods. On the afternoon of September 8, 1977, defendant entered the sheriff’s office to inquire as to the status of his rifle. Defendant approached the front counter in the office and asked a deputy sheriff where his rifle was and how he could recover it. Deputy Rex Powell, who was standing behind the counter entered the conversation and told defendant that the grand jury had determined that the rifle belonged to Elliot as a result of the trade. Nonetheless, defendant maintained that the rifle belonged to him and that he wished to recover his property. After further discussion, Powell asked defendant to leave the office.

The testimony of several other deputies who were in the vicinity of the front counter during the discussion between Powell and defendant was to the effect that defendant was not speaking in a particularly loud or disruptive tone of voice. Nevertheless, as defendant still did not leave the office, Powell told defendant that he would place him under arrest for disturbing the peace unless he left. Thereafter, as defendant continued to stand before the front counter, Powell walked around from behind the counter and grabbed defendant’s arm. At this point, defendant struck Powell in the eye. A scuffle involving defendant and several other deputies ensued. Finally, defendant was handcuffed and taken away.

The defense produced witnesses who testified that Powell, during the conversation with defendant and without apparent warning, swung at and missed defendant from behind the counter. Immediately thereafter, Powell came from behind the counter, grabbed defendant’s collar, and began choking him. The defense was that defendant struck Powell only in an effort to prevent the continuing choking.

After argument of counsel, the trial judge first took notice of this court’s per curiam decision in State v. Adams, 263 La. 286, 268 So.2d 228 (1972), wherein that section of the disturbing the peace statute under which defendant was charged (La. R.S. 14:103A(2)) had been declared unconstitutional. He further observed that “it does not appear that the language [used by defendant] was particularly loud. In reference to that charge I find defendant not guilty.” Then, in reference to the resisting arrest charge, the trial judge stated that based on the evidence presented “there was no grounds to arrest for disturbing the peace before any blows was exchanged.” Hence, he found defendant not guilty of that charge. Finally, the trial judge concluded that, since he found that “Powell was not the aggressor,” defendant was guilty of simple battery.

A battery is defined, in pertinent part, as the intentional use of force or violence upon the person of another. La.R.S. 14:33. A simple battery is a battery, without consent of the victim, committed without a dangerous weapon. La.R.S. 14:35. La.R.S. 14:18 provides in pertinent part:

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.

La.R.S. 14:19 provides:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

The sole basis of the trial judge’s judgment finding defendant guilty of simple battery was that “Powell was not the aggressor.” There is no evidence to support this conclusion. The testimony offered by the state of the deputies who witnessed the confrontation between Powell and defendant indicated that defendant was not speaking in a loud or disruptive manner or otherwise acting aggressively. The testimony conclusively established that Powell advanced upon defendant and grabbed his arm before any blow was struck by defendant. The evidence is uncontroverted that Powell was the aggressor in this fray, not defendant. See La.R.S. 14:21. Moreover, there is no evidence in the record to show that defendant’s use of force or violence (the blow to Powell’s eye) was not reasonable or apparently necessary to prevent a forcible offense against defendant’s person. La.R.S. 14:19. In other words, no evidence was produced that defendant’s conduct was not justified in the defense of his person. La.R.S. 14:18(7). On the contrary, all evidence was that it was justified under the circumstances here presented. Hence, we find no evidence of criminal conduct on the part of defendant. Accordingly, he should be acquitted of the crime of simple battery.

In State v. Gatlin, 241 La. 321, 129 So.2d 4 (1961), we overruled prior jurisprudence and held that when this court found no evidence of the crime charged or an essential element thereof upon review of a bill of exceptions taken to the overruling of a motion for a new trial grounded on such a contention, defendant would not be discharged but rather the case would be remanded for a new trial conformably with the nature of the pleadings.

The United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978), addressed the issue of whether a defendant may be tried a second time when a reviewing court had determined that in a prior trial there was no evidence of the crime charged or an essential element thereof. The Court held that the double jeopardy clause of the fifth amendment precludes a second trial once the reviewing court has found no evidence of the crime charged or an essential element thereof. The Court further stated, “[t]he only ‘just’ remedy available for [the reviewing] court is the direction of a judgment of acquittal.” The Court noted that the contention that there was no evidence of the crime charged or an essential element thereof may properly be raised solely by a motion for a new trial. In addition, the Court expressly held that a defendant does not waive his right to a judgment of acquittal by moving for a new trial.

The double jeopardy prohibition of the fifth amendment is applicable to a state criminal trial through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). It is our opinion that we are compelled under the holding in Burks and the federal constitutional standard pronounced therein to enter a judgment of acquittal when this court upon review properly presented finds no evidence of the crime charged or an essential element thereof in the record of the trial. To the extent that State v. Gatlin, supra, and our other decisions relying thereon suggest that by moving for a new trial a defendant waives his right to a judgment of acquittal on the basis of no evidence, they are overruled. We held similarly in State v. Liggett, 363 So.2d 1184 (La.1978).

DECREE

For the reasons assigned, the conviction and sentence are annulled and set aside and defendant is ordered discharged.

SUMMERS, J., dissents and assign reasons.

SUMMERS, Justice

(dissenting).

While the majority purports to recognize the scope of this Court’s appellate jurisdiction to be constitutionally limited to questions of law in criminal cases, the limitation is disregarded in this case. La.Const. art. V, § 5(C). Only when there is no evidence of an essential element of the crime charged is a question of law presented which empowers this Court to reverse a verdict of guilty. Here the Court finds no evidence of simple battery contrary to the finding of the trial judge.

On the day in question, Deputy Rex Powell appeared at the LaSalle Parish Sheriff’s Office while Deputy Branton and defendant Thompson were involved in a discussion over a rifle reportedly belonging to defendant which defendant’s younger brother had traded to Don Elliot without defendant’s knowledge. At the time defendant displayed an aggressive attitude and was using loud and profane language. When asked to leave the Sheriff’s Office defendant told Powell he would not leave until he obtained the rifle. At that point Powell told him that if he didn’t leave he was going to place him under arrest for disturbing the peace. Defendant replied that “no white m_f_was going to arrest him.” Whereupon Powell walked from behind the counter, where he had been standing, toward defendant, who stood in front of the counter, intending to place him under arrest. As Powell extended his hand to take hold of his arm, defendant struck him in the eye. This version of the happening, which the trial judge accepted, is some evidence of the essential elements of simple battery.

What the Court had done in this case is precisely what the Constitution forbids. Contrary to the finding of the trial judge the Court has reconstructed the events of the offense from the testimony of other witnesses, denying thereby the trial judge’s credibility determination of Deputy Powell’s testimony.

I would affirm the conviction and sentence.

      . 358 So.2d 955 (La.1978).

      . The Court distinguished reversals due to trial error from reversals resulting solely from no evidence presented of the crime charged or an essential element thereof. The holding in Burks and this court’s implementation of that holding are strictly limited to those cases wherein this court upon review properly presented determines that there was no evidence of the crime charged or an essential element thereof.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Guy BERNARD.
    No. 61981.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      James E. Bolin, Jr., Shreveport, for defendant-appellant.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Defendant Guy Bernard was charged by bill of information with armed robbery (R.S. 14:64). After trial by jury he was found guilty of simply robbery (R.S. 14:65). Subsequently defendant was charged by bill of information as a second felony offender and, after a multiple offender hearing, was sentenced to serve ten years at hard labor. Defense filed four assignments of error with the trial court, but Assignments 2 and 4 were not briefed nor argued and are considered abandoned.

Assignment of Error No. 1

Defense contends that the trial court erred at the' multiple offender hearing when it admitted into evidence the records of defendant’s first conviction (Exhibit S-1). Defense argues that the photocopy of the guilty plea and sentence of a Guy Bernard sent by the Record Clerk of the Texas Department of Corrections was not properly certified according to R.S. 15:529.1 F nor to the federal certification requirements. Defense relies on State v. Washington, 322 So.2d 185 (La.1975) and State v. Curtis, 319 So.2d 434 (La.1975) to argue that careful scrutiny must be given to certification .of documents the state uses for proof of prior felony convictions.

This court agrees that Exhibit S-l does not comply with R.S. 15:529.1 F, which provides:

“The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.”

Exhibit S-l records were certified not by a warden, superintendent or other chief officer of the Texas prison but by the Record Clerk of the Texas Department of Corrections who as such officer has legal custody of the original files and records of persons committed to the Texas penal institution. Otherwise, Exhibit S-l includes the name of defendant, his photograph, his fingerprints, a copy of his guilty plea, and the date and time of sentence; but it does not include, as required by R.S. 15:529.1 F, the length of time imprisoned and date of discharge from that prison. These latter omissions, however, are not as significant. See, State v. Ralph, 336 So.2d 836 (La.1976) and State v. Maduell, 326 So.2d 820 (La.1976).

Consequently, the certification of the Record Clerk does not satisfy R.S. 15:529.1 F requirements for prima facie evidence of the imprisonment of that person for a prior offense. This court has held, however, that the proof set forth in R.S. 15:529.1 F is neither sacramental nor the exclusive method of proving that defendant is a habitual offender, and the necessary facts constituting proof that the accused is an habitual offender may be established by other competent evidence. State v. Barrow, 352 So.2d 635, 637 (La.1977). See also, State v. Hamilton, 356 So.2d 1360 (La.1978); State v. Curtis, 338 So.2d 662 (La.1976); State v. Jones, 332 So.2d 461 (La.1976); State v. Montana, 332 So.2d 248 (La.1976); State v. Hill, 332 So.2d 475 (La.1976); State v. Maduell, supra. In a habitual offender proceeding the state is only required to establish by competent evidence that there is a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. State v. Curtis, 338 So.2d 662, 664 (La.1976); State v. Washington, 322 So.2d 185, 188 (La.1975).

In the present case the state submitted evidence to establish a prior felony when it introduced the photocopies of the Texas prison records of a Guy Bernard together with a form of attestation and certification with the seal of the county court. The defendant does not dispute that there is a prior felony conviction nor that he is the same person who was convicted of the prior felony. The defense does not argue that the photocopies of the prison records are not the substantial equivalent of the original Texas prison records on file with the Record Clerk of the Department of Corrections nor does the defense show that the contents of these purported photocopies inaccurately reflect the contents of the original prison records. See State v. Stuart, 344 So.2d 1006, 1009 (La.1977), The defense does object to the form of certification of the prison records and relies on State v. Washington, supra.

This court remanded the Washington case for resentencing because the trial court admitted penitentiary documents that satisfied neither the statutory standards of R.S. 15:529.1 F nor of R.S. 15:457. The documents, including fingerprints, were transmitted by an informal letter from an individual identifying himself as “I.D. Officer, La. State Penitentiary” with no other proper authentication. Washington is distinguishable from the present case because the Texas prison records were transmitted with (1) an attestation by the custodian of records that the attached copies were compared by Billy R. Ware with the originals on file and each copy contains a full, true and correct transcript and copy of the original, (2) a certificate of the presiding judge that Billy R. Ware is the Record Clerk of the Texas Department of Corrections and is the legal keeper and officer having legal custody of the original records of the Texas Department of Corrections and that the certificate is in due form and the signature is his genuine signature, and (3) a certificate of the clerk of the county court certifying to the official character of the presiding judge and the genuineness of the signature of the judge. Also annexed to the certificate of the clerk is the seal of the county court where the Texas prison is located.

Defendant argues, however, that this transmittal form and the photocopy of a certified copy of defendant’s judgment of conviction are improperly certified. The transmittal form entitled “U.S.Rev. Statutes, Sec. 906. Attestation by Custodian, Certificate of Presiding Judge, Certificate of Clerk to official character of Judge” was drafted to comply with 28 U.S.C. § 1739 which provides a method of certifying nonjudicial records to insure full faith and credit to those nonjudicial records in courts of sister states. Defendant objects to certifying prison records of other states pursuant to 28 U.S.C. § 1739 because he characterizes prison records as judicial records which must be certified pursuant to 28 U.S.C. § 1738, which provides a method of certifying judicial records of courts of other states to insure full faith and credit. Defense argues that the prior conviction and sentence to satisfy federal certification requirements of 28 U.S.C. § 1738 must include the attestation of the Criminal Clerk of Tarrant County District Court (the county court where defendant was convicted and sentenced) and the seal and certificate of the judge of that court; defendant contends that the attestation, seal and certification of the Record Clerk of the Texas Department of Corrections, together with the Clerk of Court and District Judge of Walker County (the county where defendant was imprisoned) does not satisfy the federal or state certification requirements.

First, although state prison records may contain some judicial records of another state, such as the judgment in the present case, prison records are nonjudicial records or “records kept in any public office” of a state, and 28 U.S.C. § 1739 governs the certification of nonjudicial records of out-of-state public offices for full faith and credit. The Texas prison records were properly certified pursuant to 28 U.S.C. § 1739 and the federal certification requirements.

Second, the Louisiana habitual offender statute, R.S. 15:529.1 F, does not require a certified copy of the judgment of conviction from the clerk of court of the court where defendant was convicted and sentenced together with the seal and certificate of the judge of that court. R.S. 15:529.1 F specifies the requirements for prima facie evidence submitted in a habitual offender hearing, and only requires from the warden of the state prison where defendant was imprisoned a certificate containing among other prison information “a statement of the court in which a conviction was had.” The Louisiana statute requires a certificate containing this statement from the warden without further certification from the clerk of court; in the present case the certificate contains a copy of a judgment and is from the record clerk of the prison, with further certification by the district judge of the record clerk’s official capacity and by the clerk of court of the district judge’s official character.

R.S. 15:529.1, the habitual offender statute, only requires prison records to prove prior felony; a copy of a prison record, properly certified pursuant to 28 U.S.C. § 1739 by the officer who is the legal custodian of the same prison records, is the equivalent of the original in authenticity pursuant to R.S. 15:457, which provides:

“A copy of a document, certified to by the officer who is the legal custodian of the same is equivalent to the original in authenticity; but the certificate of an officer to any matter not under the general powers vested in him is no evidence at all.”

The state submitted evidence that there was a prior felony conviction and evidence that the defendant was the same person who was convicted of the prior felony. A fingerprint expert took fingerprints of Guy Bernard at the habitual offender hearing and compared those fingerprints to the fingerprints in the Texas prison records of a Guy Bernard. The expert identified fifteen “points” and testified that the F.B.I. requires only six “points” for identification. Also the trial judge had before him the Texas prison records containing two photographs of the Guy Bernard in the Texas prison which he could compare to the Guy Bernard in the present case. Finally, the defense does not dispute that defendant was the same person who was convicted of a prior felony in Texas.

Assignment of Error No. 1 lacks merit.

Assignment of Error No. 3

By Assignment of Error No. 3 defendant asserts that the trial court erred in finding him a second felony offender because competent evidence did not support such a finding. In brief defense counsel additionally argues that the first conviction was obtained in violation of federal constitutional rights of the accused. Defendant correctly argues that if the conviction was obtained without compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), then the prior conviction cannot be used to enhance a defendant’s penalty under R.S. 15:529.1. Defendant also correctly contends that the record must affirmatively show that the defendant was advised of his rights and that he knowingly, intelligently and affirmatively waived his rights.

In State v. Hoffman, 345 So.2d 1 at 4 (La.1977), the defense argued that the records in the cases charged in the habitual offender bill as prior felony convictions were silent as to whether the defendant was advised of his rights under Boykin when he pleaded guilty. Noting that under the Boykin rationale the record must show that the pleas were counseled or waivers of counsel, this court cited City of Monroe v. Coleman, 304 So.2d 332 (La.1974), and stated the following standards:

“. . . The record must affirmatively show that the accused either was accompanied by counsel or that he was informed of his right to counsel and waived that right, and that the plea was knowingly and intelligently entered. See also State v. Guillotte, 297 So.2d 423 (La.1974); State v. Coody, 275 So.2d 773 (La.1973).
In the absence of such showing, such convictions cannot serve to enhance the penalty under the multiple offender statute.” 345 So.2d at 4.

The only evidence in the record relevant to the circumstances surrounding defendant’s previous guilty plea is Exhibit S — 1. A copy of the judgment on plea of guilty entered in the Texas court formed part of Exhibit S-l. The copy of the judgment indicates that defendant, Guy Bernard, in the presence of his attorney, Frank Coffey, appeared before the Texas court and pleaded guilty to unlawful possession of a narcotic drug (heroin). Printed language on the judgment indicates that defendant appeared to the court mentally competent and not influenced by any consideration of fear or any persuasion prompting him to confess his guilt, and that the court admonished the defendant as to the consequences of such a plea. There is no merit in this assignment. See Loper v. Beto, 405 U.S. 473 at 481, 92 S.Ct. 1014 at 1018, 31 L.Ed.2d 374 at 380-381 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); State v. Bell, 324 So.2d 451 (La.1975); State v. Fuller, 312 So.2d 287 (La.1975).

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

SANDERS, C. J., concurs.

      . 28 U.S.C. § 1739 provides:
      “All nonjudicial records or books kept in any public office of any State, Territory, or Possession of the United States, or copies thereof, shall be proved or admitted in any court or office in any other State, Territory, or Possession by the attestation of the custodian of such records or books, and the seal of his office annexed, if there be a seal, together with a certificate of a judge of a court of record of the county, parish, or district in which such office may be kept, or of the Governor, or secretary of state, the chancellor or keeper of the great seal, of the State, Territory, or Possession that the said attestation is in due form and by the proper officers.
      If the certificate is given by a judge, it shall be further authenticated by the clerk or prothono-tary of the court, who shall certify, under his hand and the seal of his office, that such judge is duly commissioned and qualified; or, if given by such Governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or Possession in which it is made.
      Such records or books, or copies thereof, so authenticated, shall have the same full faith and credit in every court and office within the United States and its Territories and Possessions as they have by law or usage in the courts or offices of the State, Territory, or Possession from which they are taken.”

      . 28 U.S.C. § 1738 provides:
      “The Acts of the legislature of any State, Territory; or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
      The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
      Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.”